text:
    (No. 4860
    William H. Daum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1961.

    Drach and Terrell, Attorneys for Claimant.
    William L. Guild, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On February 26, 1959, William H. Daum, an inmate of the Illinois State Penitentiary at Menard, Illinois, filed his claim against the State of Illinois seeking damages in the amount of $25,000.00 for injuries received by him due to the alleged negligence of the State.

The State did not file an answer, but has defended the claim on the theory that claimant was either guilty of contributory negligence, or had assumed the risk of the work at hand.

Respondent’s brief acknowledges that the statement in claimant’s brief sets forth the facts of this case in a proper manner. Subject to certain deletions, they are as follows:

STATEMENT OF FACTS
“On June 3, 1959, claimant was an inmate of the Illinois State Penitentiary at Menard, Illinois, and was assigned, along with two other inmates, James Blair and Edward Shrake, to the job of removing certain poles and attached electrical wires and cables on the penitentiary grounds in connection with a project, which was then being undertaken by the penitentiary in converting the electrical system at Menard from DC current to underground AC current. A private contractor was employed to install the new system, and the penitentiary undertook to remove the existing poles and wires. At the time in question, one Oscar Marquadt was the Chief Engineer at the institution, and, as such, was in charge of the work to be performed by the penitentiary. One George McVicker was Marquadt’s assistant. Charles Brown was employed by the State as an electrical foreman at the penitentiary, and was responsible to Marquadt and McVicker. He was given the responsibility of the immediate supervision of the removal of the poles and wires in question.
“Approximately two weeks before June 3, Oscar Marquadt had a conversation with inmate James Blair, who had been working for many years on what was called the electrical crew, in which he ordered Blair and his crew to perform the job of removing the poles and wires then existing on the premises of the penitentiary. Although claimant had been for many months prior to that date closely associated with Blair and inmate Edward Shrake in the performance of electrical work in and about the penitentiary, both as a welder and as an electrician, Daum was on said date not officially assigned to the work of electrical maintenance as were Blair and Shrake. He was at that time officially assigned to the welding shop, a division of the machine shop, over which Marquadt, as Chief Engineer, had supervision. At or about the time Marquadt directed Blair to undertake the removal of the wires and poles, claimant and Blair requested Charles Brown to arrange for Damn's assignment from the welding shop to the electrical crew, in order that he, Daum, might officially be a part of that group of persons, who were concerned with and assigned to the job of performing electrical work on the penitentiary grounds.
“Although Charles Brown, as electrical foreman, was the immediate supervisor of Blair, Shrake and Daum in connection with this project, the work of removing the poles and lines was not considered as being part of the routine or normal work of the electrical crew, but, rather, was regarded as a wrecking job, to which claimant Daum, as a welder, might properly be assigned.
“All of the officers and other persons testifying at this hearing agree that at some date within the two weeks prior to June 3, 1959, claimant Daum was officially assigned to work with Shrake and Blair under the supervision of the electrical foreman, Charles Brown. Brown at all relevant times herein had the authority to use inmates assigned to various departments in the machine shop, whether assigned specifically to his department or not, without formal reassignment, when such inmate was not engaged in performing work in the department to which he was then assigned. Brown testified that, during the period in question, his electrical crew was shorthanded, and that Daum had little welding work to do at that time.
“On or about May 20, 1959, when inmate Blair was told to perform this job, he was instructed by Marquadt to remove the wires from the poles before taking the poles down. When Blair suggested pulling the poles down before removing the wiring, Marquadt stated that it would not be necessary to do this, because all of the poles involved were reinforced with railroad iron. Marquadt had been in the penitentiary for a number of years, and was regarded by all those persons under his supervision as an engineer, who knew or should have known the proper manner of removing the existing system of wiring. During the period between May 20 and June 3, electrician Charles Brown recommended to Marquadt that, in the interest of safety, a derrick be used to support the poles while the wiring was being taken from them; but Marquadt insisted that all of the poles were reinforced with railroad iron, and that his prescribed method of removal was entirely safe.
“Although Blair, Sbrake and Daum were under the immediate supervision of Charles Brown, it appears that Brown was not continuously on the job site, and that he only visited the job site on and off. The testimony ranges from two times throughout the two week period prior to June 3 to 50 times a day. The latter is Brown’s estimate. Brown instructed Daum in the use of a safety belt in connection with ascending the poles.
“On June 3, 1959, between the hours of 11:00 A.M. and noon, Daum ascended a 25 foot iron pole situated approximately 150 feet from the wall of the penitentiary for the purpose of cutting the messenger cable, which was secured by a bracket on that pole. The messenger cable consisted of a round lead cable of a diameter of some one to two inches within which ran a large number of smaller wires, and on top of which was a metal loop through which an additional steel cable ran. When Daum reached the level of the messenger cable, which was approximately 20 feet above the ground, he fastened his safety belt around the pole, looping the belt around one arm of the cross arm in the manner that he had been instmcted or directed to do by the electrical foreman, Charles Brown. Daum flattened out the messenger cable, and was reaching back to get his cutters when the whole cable began to slide through the bracket attached to the pole, by reason of the cable having been severed near the prison wall, or at some other point between Daum’s pole and the wall. Daum’s pole then began to jerk, and, upon being warned by Chief Guard Lence that the pole was beginning to fall, Daum attempted to unhook his safety belt. Being unable to unhook it in time, Daum attempted to get around on top of the pole, so that he would not be pinned by it upon falling. Before this was done, the pole and Daum hit the ground, the pole falling on Daum's right elbow, right thigh and left leg between the knee and the ankle. He was pinned in that position for three or four minutes, until Blair and Lence removed him from underneath the pole after unhooking his safety belt.
“Daum had never done any electrical work prior to his incarceration at Menard; and, except for the experience obtained by him through working with Blair and Shrake at the penitentiary in connection with several wiring jobs, he was inexperienced in electricity. He had no prior experience in removing pole and wiring systems. With the exception that he had been instructed as to the proper use of the safety belt when ascending and working on the poles, he received no special instructions as to the manner in which the poles and wiring were to be removed from any officer or employee of the penitentiary. Although Blair, by virtue of his having been on the electrical crew for many years, was expected to take the lead in supervising the activities of Daum and Shrake, he was clothed with no official supervisory capacity.
“At the time of the accident, the messenger cable was strung on several poles running from the south wall of the penitentiary at a point to the east of the main cellblock to a pole immediately inside the wall at that point; thence in a northwesterly direction to a pole located near the machine shop, which pole is located immediately inside the wall, and is identified as pole number 2; thence generally west to the pole, which broke with claimant, which pole is designated as pole number 3; and, thence west to several other poles, running parallel to Front Street.
“Immediately prior to the accident, Charles Brown, the electrical foreman, was in the vicinity of pole number 1, and at that time, after having requested that Blair obtain some wire cutters for him, severed the messenger cable at the wall. Although Brown testified that he severed this line that morning, but some time before the accident occurred, the great preponderance of evidence is that the line was cut by Brown immediately before the pole fell. It was the strain caused upon the system by reason of the unsecuring of this line, which had acted as a guying support for all poles in the system, which caused the pole upon which Daum was working to be subjected to a force and strain, which the pole, in its weakened and aged condition, was unable to withstand. Shrake, who was in the vicinity of the pole upon which Daum was working, and who had a clear view of the place where Charles Brown and another inmate were working at the wall, testified that he saw Brown cut the cable immediately before the poles fell. Blair testified that he had a conversation with Brown immediately before the poles fell, in which Brown had requested wire cutters, and had informed Blair that he was going to cut the messenger cable at the wall. Immediately after the accident, he observed that the cable was cut at the wall. There is no other accounting for the sudden falling of the pole, since there was no evidence introduced showing that any other undue strain had been placed upon the system. Several days before, Blair had ascended the same pole, and had removed a transformer of a weight of approximately one thousand pounds.
“At or about the time that the project of removing the poles and lines began, Charles Brown recommended to the Chief Engineer, Oscar Marquadt, that a derrick be used to support the poles, since the poles were old and in a weakened condition, pointing out that the use of a derrick as a support would lessen the danger to the inmates working on the poles. Brown was at that time assured that no danger existed, because all of the poles on the grounds were reinforced with railroad iron. Acting upon the assumption that the poles were in fact so reinforced, Brown did not use any means of giving support to the poles, although he admitted that measures could have been taken to support them by guying the poles, by using an A-Frame and by using a derrick. Furthermore, Brown testified that neither he nor any other officer took any steps to determine whether any of the poles were, in fact, reinforced with railroad iron or any other metal.
“As a matter of fact, neither the pole upon which Daum was working, nor any of the poles, which fell with it at the time of the occurrence in question, were reinforced with railroad iron or any metal.
“Although Brown was the immediate supervisor of the crew engaged in taking the poles down, and had himself arranged the assignment of Daum to this crew, and, although he was on the job site many times a day, he testified that he had never seen Daum working on a pole. However, this is disputed by the testimony of Captain Lewis C. Lence, Assistant Chief Engineer George McVicker and Chief Guard Max P. Frye, all of whom had seen Daum working on poles on many occasions throughout the two week period preceding the date of the accident, and the testimony of inmates Edward Shrake and James Blair, both of whom stated that Daum worked on poles every day during this period, and during times when Brown was present. The testimony of claimant, who was given a safety belt by Brown, refutes this assertion, as does much of the testimony of Brown himself.
“None of the poles were ever examined or tested for strength, even though the poles were rusted at the bases, and were known by officers of the institution to be 35 or 40 years old.
“Not only were the poles not inspected or examined with reference to determining the extent of internal reinforcemnt by any responsible guard, officer or employee of the penitentiary, but all attempts made by inmates Blair, Shrake or Daum to have the poles tested for strength were refused by Brown, who on each occasion stated that no need existed for testing the poles, since they were all reinforced with railroad iron.
“Officer Brown testified that no safeguards were taken to prevent poles from falling while inmates were working on them. He further testified that, although it would have been good practice to guy the poles to provide additional support, he took no such measures. He testified, based upon his years of experience, that it would have been good practice to have provided three guy wires for each pole.
“As the result of Daum’s fall and his being pinned under the fallen pole, Daum sustained a displaced fracture of the olecranon of the right elbow with considerable fragmentizing or splitting of the bone, a simple fracture with displacement of the tibia of the left leg, and a fracture of the left pubicramus. The elbow fracture was treated initially by surgery, consisting of an open reduction of the fracture with the insertion of a W2 inch screw.
“The arm was immobilized, and some weeks later an operation was performed, wherein the screw was removed. The testimony of the physicians testifying in this case is that Daum had sustained a permanent injury to his right arm, in that he now has and will continue to have only 40 to 50 per cent use of that arm.
“The fracture of the tibia in the left leg was treated by open reductión of the fracture and the insertion of a Rush Nail. The leg was thereafter immobilized, and some weeks later surgery was performed in which the nail was removed. Although the fracture of the bone has completely healed, the fracture of the left leg has resulted in a shortening of that leg by 1⅜ inches, so that a two inch built-up heel must be worn by claimant at the present time in order to permit even walking and to reduce strain upon the hip. The disability is not correctible by further surgery, and the medical testimony is that traumatic arthritis will be expected to set in. That this has already happened is borne out by the testimony of Daum that he experiences pain in his leg during damp weather.
“Daum was hospitalized for seven months at Menard, and is still unable to perform any work requiring the full use of his right arm or standing for any length of time. Daum’s testimony with reference to the acute pain experienced by him for the first weeks following the injury is borne out by the testimony of Dr. James Weatherly, who testified that acute pain would be experienced the first ten or fourteen days after the accident, and that soreness would be experienced for four or five weeks thereafter.”

This case was argued orally before the Court.

As to the charge of negligence, the Court finds that Oscar Marquadt, Chief Engineer, was entirely mistaken when he advised his subordinates that the poles were reinforced with steel. As to the time when the messenger cable was cut, we believe that the preponderance of the evidence indicates that the cable was cut while claimant was working on the pole, rather than Brown’s testimony that it was cut earlier in the morning. The best evidence in this regard is the fact that all three poles fell at the same time.

The Court, therefore, finds from the evidence that respondent was negligent in failing to provide safe working conditions for claimant.

Respondent’s contention that claimant was guilty of contributory negligence, and assumed the risk of the job at hand, is not supported by the evidence. We do not believe that claimant should be penalized for his willingness to work. Since he was using a safety belt, in accordance with instructions, we do not find any evidence of foolhardiness, or unnecessary exposure to danger on his part. Moore vs. State of Illinois, 21 C.C.R. 282.

It is unnecessary to restate the injuries received by claimant. They were severe and of a permanent nature. The medical testimony supports the claim that he will be impaired in obtaining gainful employment when he is discharged from the prison.

The Court, therefore, finds that claimant has suffered damages in the amount of $20,000.00.

An award is, therefore, made to claimant, William H. Damn, in the amount of $20,000.00.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4924
    Oklahoma Oil Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1961.

    Panter, Nelson, Rothstein and Albert; Giffin, Winning, Lindner and Newkirk, Attorneys for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Fearer, J.

The record in this case consists of:

1. Complaint

2. Departmental Report

3. Stipulation

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

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

In accordance with the motion for the waiver of briefs, signed by all parties, and the complaint filed herein, with exhibits attached thereto, it appears that this claim in the amount of $119.51 is for materials and services and petroleum products purchased from claimant’s agent and dealer by respondent, and the invoices herein were not paid due to the fact that the appropriation had lapsed at the time that the claim was submitted.

It was stipulated and agreed that the Departmental Report, signed by Earl McK. Guy, Engineer of Claims, Division of Highways, dated August 5, 1960, and filed under Rule 16 of this Court, is to constitute the record in this case.

It is further stipulated that by said report it is acknowledged that the claim is correct, that there was a balance remaining in the appropriation at the time the petroleum products were purchased, and that the invoices would have been paid had they been presented before the lapse of the appropriation.

There seemingly appears to be no dispute as to questions of fact or law in this matter. In previous holdings of this Court, we have allowed claims, which have not been paid because of the lapse of an appropriation, if services rendered and merchandise furnished were satisfactory, and the charges reasonable, and have stated that such claims would be allowed, even though the appropriation had lapsed, if the funds were available at the time that services were rendered, or items were purchased for the State of Illinois.

An award is, therefore, made to claimant in the sum of $119.51.


author: Tolson, C. J.

text:
    (No. 4926
    Isabelle Thomas, Claimant, vs. State of Illinois, Respondent,

      Opinion filed May 9, 1961.

    Besse and Besse, Attorneys for Claimant.

      William G. Clark, Attorney General; Harold A. Cowen, Assistant Attorney General, for Respondent.
   Tolson, C. J.

This cause comes on to be heard upon the motion of respondent to strike and dismiss the amended complaint filed by claimant on March 17, 1961.

The question raised by the pleadings is whether or not claimant has complied with Secs. 22-1 and 2 of the Court of Claims law, which read as follows:

“Within six months from the date that such an injury was received or such a cause of action accrued, any person who is about to commence any action in the Court of Claims against the State of Illinois for damages on account of any injury to his person shall file in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any.
“If the notice provided for by Section 22-1 is not filed as provided in that section, any such action commenced against the State of Illinois shall be dismissed, and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury. (Added by Act approved July 10, 1957).”

Claimant has filed objections to the motion to strike, and, as grounds for same, alleges that within six months of the injury due notice was given to the State of Illinois by Louis G. Gramp, Park Supervisor of the Northern District One, and Ray Barto, Superintendent of Parks of the White Pines State Park, both of the State of Illinois, Department of Conservation.

Claimant further alleges that such employees of the State were her agents for the purpose of giving notice, and, finally, that the State is estopped -from raising any questions as to the sufficiency or form of said notice.

It is apparent from the pleadings that due notice was not served upon the Attorney General and the Clerk of the Court of Claims by anyone as required by statute. Claimant argues, however, that, if any employee of any department of State government is notified of the injury, the latter notice is a sufficient compliance with the act.

It is obvious that claimant’s position is untenable. The State of Illinois operates through many departments, and employs thousands of employees. It may well be that a report of the accident was filed Avith the Department of Conseiwation, but such a report could not be regarded as a notice to the Attorney General and the Clerk of this Court.

The statute places the burden upon claimant, her agent, or attorney to give the proper notice. An agency relationship cannot be established by reporting an accident to a State employee, and thereafter gratitutious'ly claiming that the employee is iioav the agent of claimant.

For the above reason, the motion of the respondent to strike and dismiss the amended complaint is alloA\Ted.


text:
    (No. 4938
    Ted N. Small, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1961.

    Jefferson Lewis, Attorney for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Fearer, J.

The record in this case consists of the following:

1. Complaint

2. Departmental Report

3. Stipulation

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

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

The complaint filed herein is for certain expenses incurred by claimant between the period from June 1, 1959, to and including August 7, 1959, when he was employed by the Department of Public Works and Buildings of the State of Illinois in the capacity of an inspector with a survey team working upon a project at Lewistown and Canton. Claimant was a married man and living away from home. Attached to' the complaint is a listing of the various items of expense.

A letter was written to the Attorney General by Earl McK. Guy, Engineer of Claims, reviewing the claim, and advising the Attorney General that claimant lived in Petersburg, Illinois, and was assigned to the project mentioned above; that, as an employee on field assignment, he was entitled to certain expenses as defined in Division of Highways Administrative Memorandum No. '32, (Revised), dated April 1, 1958, and bearing the subject: Expense Accounts — Rates for Lodging, Meals and Automobile Mileage.

It appears from the report of the Division of Highways that a figure has been agreed upon as being correct for expenses allowed to a married man, who is away from home and working on State projects of this nature, and that respondent has agreed that the sum of $93.00 is a ■correct figure. The attorney for claimant has entered into a stipulation with the Attorney General’s office, and, .also, there is filed in this case a motion for waiver of briefs by both parties, wherein it is agreed that the letter of the Division of Highways, written by Earl McK. Guy, dated April 14,1961, and sent to the Attorney General in lieu of the customary report of the Division of Highways, which has been filed in this cause under Eule 16 of the Court of Claims, shall constitute the record in this case.

There being no disputed questions of law or fact, and, in view of the stipulation and motions entered into by the parties hereto, by and through their respective counsel, an award is hereby made to claimant in the sum of $93.00.


text:
    (No. 4959
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1961.

    William A. Schuwerk, Attorney for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Tolson, C. J.

The County of Randolph has filed a claim seeking an award in accordance with the statutory provisions of Chap. 65, Pars. 37, 38, and 39, Ill. Rev. Stats., 1957.

The claim was heard by Commissioner Billy Jones, and his report, in the following words and figures, is hereby adopted by the Court:

COMMISSIONER’S REPORT
“This is the latest in the long series of claims that are filed regularly biennially by the County of Randolph for payment of filing fees, sheriff’s fees, and State’s Attorney's fees owed to the respective county officers by reason of habeas corpus writs filed by inmates of the Illinois State Penitentiary at Menard. The complaints set out the statutory authority, and list the names of the inmates, who availed themselves of the above services. The Commissioner, together with the State’s Attorney of Randolph County and the Assistant Attorney General of the State of Illinois, appeared at the Circuit Clerk’s office in Randolph County, and examined the entries in the court docket as compared with claimant’s exhibit A. A typographical error was discovered, which prompted the following stipulation by and between the parties.
‘It is stipulated by and between the parties that the State’s Attorney’s fee listed in claimant’s exhibit A in cases Nos. 4251 to and including case No. 4277 be changed from Ten (10) Dollars to Twenty (20) Dollars; that the total amount in filing fees shown in exhibit A be changed from Two Thousand Five Hundred and Forty Dollars ($2,540.00) to Two Thousand Five Hundred and Thirty Dollars ($2,530.00); and that the total amount-prayed for in paragraph seven (7) of exhibit A be changed from Six Thousand Eight Hundred and Fifty-two Dollars ($6,852.00) to Six Thousand Eight Hundred and Forty-two Dollars ($6,842.00).
OBSERVATION
“The Commissioner found all of the cases listed in claimant’s complaint docketed and in order in the regular Circuit Clerk's docket book, and the only difference found was that claimant failed to list one ten dollar filing fee in his complaint, which was entered in the docket book, and was claimed in the total amount prayed for. Tire respondent objected to the allowance of this ten dollar ($10.00) fee, and the objection was sustained.
CONCLUSION
“The Commissioner wishes to state that all of the fees claimed were for bonafide cases, which were filed by inmates of the penitentiary, and for which the State of Illinois is liable.
RECOMMENDATIONS
“The Commissioner recommends the claims be allowed in the amount of $6,852.00.”

- An award is, therefore, made to the County of Randolph in the amount of $6,852.00.


text:
    (No. 4836
    Siri Ward, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1961.

    Theodore L. Forsberg, Attorney for Claimant.
    Grenville Beardsley, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Siri Ward, filed her complaint on August 19, 1958, seeking an award for injuries received by her due to the alleged negligence of the State of Illinois.

The complaint alleges that she visited her husband, who was a patient in the Elgin State Hospital, on February 9,1958, and that she walked down a corridor, slipped on a floor, which was improperly waxed, and, as a result, suffered a fracture of the right hip.

According to her testimony, she noticed that the floor was unusually waxed and soft when she walked on it. She further stated “my right foot went up like that, and I went down.”

It is to be noted that this was the third time that she walked the corridor that day, although it is not clear that she walked over the exact area on the two previous occasions.

Claire Westerdahl, claimant’s sister-in-law, testified that she visited the hospital the next day, and walked the corridor where claimant fell. She testified “suddenly I realized the floor was exceedingly slippery — I felt that I was going two ways, up-down and forward.” She stated that the floor was very highly polished, and the wax on the floor felt soft, “as though I was walking on soft soap.”

Olaf Biggs, a supervisor of the section, testified as to the procedure of washing and waxing the floors. He stated it was done about a week prior to the accident, that he did not notice anything unusual about the floor, and that the gloss was no more than usual.

Greene Finley, a supervisor, testified that he inspected the wards daily, that the floors were waxed in the usual manner, and there was no softness in the wax.

This Court is presented with a record wherein the witnesses are in total conflict. There is no way to reconcile the testimony, and we must search elsewhere to see if claimant has satisfied the burden of proof.

The Court attaches significance to the fact that the corridor had been waxed for a week prior to the accident, and had been in daily use since that time.

The Departmental Report indicates that there had been a number of visitors and others using the corridor that afternoon, none of whom slipped, which would tend to negate the charge that the floor was either highly polished or was soft like soap, as testified to by claimant and her sister-in-law.

It is common knowledge that asphalt floors are cleaned and waxed at regular intervals to preserve the surface. The fact that the work was performed by patients in the hospital is of no significance, as this work does not require any particular skill.

Claimant was an invitee, and, as such, must assume all normal, obvious or ordinary risks attendant on the use of the premises. Lindberg vs. State of Illinois, 22 C.C.R. 29 (citing Dargie vs. East End Bolders Club, 346 Ill. App. 480).

Claimant has failed to establish by a preponderance of the evidence that the wax was applied excessively or unevenly, and, since respondent is not an insurer of all who enter the hospital as an invitee, the claim must be denied.

An award is, therefore, denied.


author: Perlin, J.

text:
    (No. 4936
    Lawrence B. Harrison, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1961.

      Eric E. Graham, Attorney for Claimant.
    William G. Clark, Attorney General; Harold A. Cowen, Assistant Attorney General, for Respondent.
   Perlin, J.

The complaint herein requests payment for certain travel expenses incurred by claimant in his capacity as a psychologist in the employ of the Chicago State Hospital, a Division of the Department of Public Welfare, State of Illinois.

Claimant had been granted specific authority by the Director of the Department of Public Welfare and the Director of Finance to attend the Thirty-Sixth Annual Meeting of the American Orthopsychiatric Association in San Francisco from March 29,1959 through April 2,1959. Upon his return, claimant submitted all required receipts and expense itemization for his trip, and executed the necessary vouchers. He submitted also a report of the Association’s proceedings.

Claimant’s travel expense reimbursement request was not processed in due course because of the apparent oversight of the secretary in the Psychology Department office. The appropriation lapsed prior to the correction of this error.

Respondent has stipulated to the amount of the claim herein and to the facts accounting for its non-payment. These facts were confirmed in the report of the Superintendent of the Chicago State Hospital.

There being no questions of law or fact in controversy, as reflected by the stipulation of the parties hereto, by and through their respective counsel, an award is hereby made to claimant in the sum of $267.65.


text:
    (No. 4962
    William H. Kerr, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1961.

    Leon D. Shapiro, Attorney for Claimant.
    William G. Clark, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, William H. Kerr, filed Ms complaint against the State of Illinois on January 24, 1961 alleging that he was an employee of the Department of Vocational Education, Division of Vocational Rehabilitation, and was wrongly discharged from his employment on August 25, 1958.

On March 21, 1960, a complaint was filed in the Superior Court of Cook County, being case No. 59-S-9520, being a suit for a writ of mandamus. The title of this case being W. H. Kerr vs. Vera M. Binks, Et Al.

The record in tliis case consists of the following:

1. Complaint

2. Transcript of evidence

3. Claimant’s exhibits Nos. 1, 2 and 3

4. Respondent’s exhibits Nos. 1 and 2

5. Motion of claimant for leave to waive the filing of abstract and brief, together with attached proof of service of a copy on the Attorney General

6. Commissioner’s Report

7. Order of the Chief Justice granting the motion of claimant for leave to waive the filing of abstract and brief

8. Motion of respondent for leave to waive the filing of brief, together with attached proof of service of a copy on counsel for claimant

9. Order of the Chief Justice granting the motion of respondent for leave to waive the filing of brief

A copy of the order of the Superior Court was attached to the complaint, marked exhibit No. 1, and made a part thereof, and at the hearing a certified copy of the order was admitted in evidence as claimant’s exhibit No. 1.

This matter was heard before Commissioner Immenhausen. No answer was filed by respondent, so, therefore, a general traverse or denial of the facts set forth in the complaint shall be considered as filed under Rule 11 of this Court.

The only evidence offered by either claimant or respondent was that of claimant, and the exhibits, being a certified copy of the order of the Superior Court of reinstatement and respondent’s exhibits relative to mitigation.

The Commissioner found that, on August 1, 1960, claimant was reinstated pursuant to the order of the Superior Court, and presented his claim for back pay for the period of August 26,1958 to July 31,1960. On or about September of 1960, claimant received from respondent $6,200.00 for the period from July 1, 1959 to July 1,1960.

The reason’ advanced as to why he did not receive his pay for the period between August 26, 1958 to June 30, 1959 was that funds were not available because of the expiration of the 1957-1959 biennial appropriation.

A supplemental hearing was held in the Superior Court of Cook County, being case No. 59-S-9520. In that case the court held that there was due claimant the sum of $4,806.00 covering the period from August 26, 1958 through June 30, 1959. This supplemental order was attached to the complaint, and marked exhibit No. 2. A bill of particulars regarding the period of August 26, 1958 through June 30, 1959 was also attached to the complaint, and marked exhibit No. 3.

Claimant testified he had charge of employment of all handicapped persons in Chicago and downstate lilinois. His specialty was working with the deaf, and teaching them sign language. This particular division was created by the Legislature, as found in Chap. 123, Sec. 695. The Federal Government provided grants for states for vocational rehabilitation work, as set forth in Act 29 U.S., Chap. 4, 1954. In order for the states to receive grants from the Federal Government, each was required to submit a plan, and qualify under certain requirements. The State of Illinois qualified under the Federal Act.

There is no. question but what claimant was wrongfully discharged, and there are no questions presented as to mitigation of damages. As it was developed, claimant was unable to find any employment other than the fact that he was employed as a salesman for the Walton Bug Company for one month in July, 1959, and earned $510.00. His income tax return was introduced into evidence, and marked respondent’s exhibit No. 1. It revealed that claimant received $510.00 gross pay. from, the Walton Bug Company; that there was $47.80 tax withheld, and $12.75 social security. He testified further that he had no other earnings.

In previous cases this Court has held that, where a civil service employee is illegally prevented from performing his duties, and is subsequently reinstated to his position by a court of competent jurisdiction, he is entitled to the salary attached to said office for the period of his illegal removal. Schneider vs. State of Illinois, 22 C.C.R. 453.

In the same case we also held that claimant should mitigate damages by seeking other gainful employment, and any earnings should be offset against an award for back pay by reason of being unlawfully discharged.

Since the Commissioner had an opportunity of hearing the evidence, we adopt as our findings his conclusion, which is as follows:

“After careful consideration of all the evidence, and having had an opportunity to observe the witnesses during examination and the exhibits, if is my opinion that claimant has proved his case by a preponderance of the evidence. Claimant, William H. Kerr, was employed by the State of Illinois in January, 1955, by the Division of Vocational Rehabilitation, and was unlawfully discharged in January, 1958. Claimant filed writs of mandamus in the Superior Court of Cook County in case No. 59-S-9520 against Vera Sinks, Director of the Department of Registration and Education. A certified copy of order for mandamus and judgment order were received in evidence as claimant's exhibit No. 1. The Superior Court found that claimant was wrongfully discharged from the position of Vocational Counselor in the Division of Vocational Rehabilitation; that he was ready, willing and able to render the service; and that he was entitled to back pay from the date of his discharge to the date of his reinstatement. In accordance with said judgment order, claimant was reinstated to his position on August 1, 1960, and received $6,200.00 back pay for the period of January 31 to August 1, 1960. There remains unpaid his salary from August 25, 1958 to June 30, 1959, which was not paid because the biennium appropriation for 1957-1959 had expired.
“Claimant asks for the sum of $4,806.00 for the period of August 6, 1958 to June 30, 1959. From this amount respondent, the State of Illinois, is entitled to a credit of $510.00, which amount claimant earned as a salesman for the Walton Rug Company during this period.”

Claimant is, therefore, entitled to an award in the amount of $4,296.00.


text:
    (No. 4960
    Joseph D. Carey, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1961.

    Joseph D. Carey, Jr., Claimant, pro se.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Joseph D. Carey, Jr., filed his claim against the State of Illinois on December 21, 1960 alleging that he ivas an employee of the Department of Labor of the State of Illinois on special assignment. Claimant further alleges that he filed travel vouchers for the months of April, May and June of 1959 with the Department, and through error the vouchers were mislaid, and were not presented for payment before the appropriation lapsed.

The Departmental Report filed in this case acknowledges the existence and propriety of the claim, and admits that through error the vouchers were not presented for payment during the time in which the money was still available from the biennium.

Claimant and respondent have entered into a stipulation that the Departmental Report shall constitute the record, and, on May 25,1961, filed a joint motion to waive briefs in which it is alleged that there are no disputed questions of law or fact in this case.

The exhibits filed in this case indicate that claimant incurred travel expenses in the amount of $306.72 for the month of April, 1959; $288.01 for the month of May, 1959; and, $381.97 for the month of June, 1959, making a total of $976.70.

This Court has held that, when there is no dispute over a claim, which would have been paid in due course if the appropriation had not lapsed, it will make an award. University of Chicago vs. State of Illinois, 22 C.C.R. 682.

An award is, therefore, made to Joseph D. Carey, Jr., in the amount of $976.70.


text:
    (No. 4977
    Earl Richard Blessing, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1961.

    Frank E. Shaw, Attorney for Claimant.

      William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Earl Richard Blessing, by Frank E. Shaw, his attorney, filed his complaint on May 1, 1961 seeking an award in the amount of $1,286.14.

On May 24, 1961, a joint stipulation that the Departmental Report herein shall constitute the record was filed by claimant and respondent. A joint motion to waive the filing of briefs was presented on the same date, which alleges that there are no disputed questions of law or fact.

Claimant was employed as a guard at the Menard Branch of the Illinois State Penitentiary. On January 16, 1959, charges were made against him, and he was suspended pending a hearing.

On May 7,1959, claimant was found not guilty of the charges by the hearing officer, and a finding was made to that effect. It was recommended that he be restored to his former position, and paid all wages lost by virtue of the filing of the charge. On May 15, 1959, the Illinois Civil Service Commission, without further hearing, rejected the finding of the hearing officer, and ordered claimant discharged.

On July 13, 1959, claimant filed a certiorari proceeding in Sangamon County, and, on October 6, 1960, the Circuit Court entered an order finding that the order of the Illinois Civil Service Commission was void, and further ordered that claimant be restored to his position, and paid all salary lost by virtue of this illegal discharge.

Joseph E. Ragen, Director of the Department of Public Safety, filed a Departmental Report on May 15, 1961, which recites that he made an investigation of the claim, and found that claimant 'was entitled to his salary from January 16, 1959 to June 30, 1959 in the amount of $1,886.50. He further found that the State was entitled to an offset in the amount of $600.36 resulting from earnings of claimant during this period, leaving a balance due in the amount of $1,286.14. It further appears from the complaint that the appropriation of the Department of Public Safety lapsed on September 30, 1959, so that there were no funds available to pay the claim.

Since there is no dispute as to facts, it is apparent that claimant is entitled to an award. This Court has held that, if a valid claim is not paid by reason of the lapse of an appropriation, an award will be made. University of Chicago vs. State of Illinois, 22 C.C.R. 682.

An award is, therefore, made to Earl Richard Blessing in the amount of $1,286.14.


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

      Opinion filed July 28, 1961.

    Gosnell and Benecki, and John W. Preihs, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant was injured on February 2, 1936 in an accident, which arose out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State of Illinois, 11 C.C.R. 365, in which an award of $5,500.00 was made to claimant for total permanent disability, $8,215.95 for necessary medical, surgical and hospital services, expended or incurred to and including October 22, 1940, and an annual life pension of $660.00.

Successive awards have been made by the Court from 1942 to and including April 30, 1960, and the matter is now before the Court for an award to and including May 1, 1961.

The record consists of a verified petition, supported by original receipts, and joint motion of claimant and respondent for leave to waive the filing of briefs and arguments, which has been allowed.

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

1. Nursing expenses ______________________________________________________$1,966.40
2. Room and board for practical nurses __________________________ 638.75
3. Drugs and supplies__________________________________________________________ 590.77
4. Physicians’ services ________________________________________________________ 1,186.28
5. Hospital ____________________________________________________________________ 224.19
6. Transportation ________________________________________________________ 120.00
7. Miscellaneous expenses _________________________________________________ 35.90

The last award made in this case was in the amount of $2,288.57, and claimant now requests an award in the amount of $4,762.29.

The item of miscellaneous expenses in the amount of $35.90 is for the fitting of eye glasses. Since this item is in no way connected with the injury complained of, it will be disallowed.

Item No. 1 for nursing and practical help for claimant is not completely satisfactory. As noted, for example, in the payments made on May 31,1960, seven checks were drawn for nursing care ranging from $5.00 to $65.00, for a total of $222.50. The report does not indicate the period of time served by the seven persons mentioned during this period, and proof of this nature will not be accepted by the Court when a request is made for an award in 1962.

From the previous record of this case, it appears that the Court has reserved jurisdiction of same from year to year to determine the future needs of claimant for additional care, and it further appears that the amounts involved were necessarily expended for the medical care of claimant with the exception of the miscellaneous expenses.

An award is, therefore, made to claimant for medical and nursing services, and other expenses, from April 30, 1960 to and including May 1, 1961 in the amount of $4,726.39.

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


text:
    (No. 4633
    Leroy Shannon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1961.

      Petition of Claimant for rehearing denied July 28,, 1961.

    John R. Snively, Attorney for Claimant.
    Grenville Beardsley, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On July 15,1954, LeBoy Shannon filed his complaint seeking an award for injuries sustained while working in the woodworking shop at the Illinois State Penitentiary, Joliet, Illinois. The complaint consists of two counts, i.e., negligence and violation of statutory duty.

The case was argued orally on April 21, 1961, and the Court, after examining the pleadings, briefs and arguments, and Commissioner’s Beport, finds that the latter fairly states the facts, and arrives at the proper conclusion.

The Court, therefore, adopts the Beport of Commissioner Presbrey, which is set forth as follows:

“The evidence was taken in this cause on October 23, 1958 in the City of Joliet. John R. Snively represented claimant, LeRoy Shannon, and Samuel Doy, Assistant Attorney General, represented respondent.
“This is a claim by LeRoy Shannon to recover alleged damages for personal injuries sustained by him while an inmate in the Illinois State Penitentiary. After claimant’s confinement to the penitentiary, he was processed in the usual manner.
“After holding several jobs in the institution, he was assigned to the furniture factory on March 6, 1953. Adrian Hartfield was the superintendent of said factory. According to the testimony of respondent’s witness, Adrian Hartfield, claimant was assigned to the furniture factory at his own request. His first assignment was as a janitor or porter. From there he was transferred to the sanding line, and thereafter he was put on a drill machine. According to the superintendent, he requested to be assigned to a power saw. The power circular saw in question is like a large table with the saw blade projecting through the surface of said table. Various fixtures can be used on said saw. This request was denied at first because of lack of work. Subsequently he was allowed to work on the saw part time.
“Claimant testified that, before he was assigned to the saw, he would go over and watch the men operate it. Claimant contends that he was ordered to work on said saw. It appears from the testimony of claimant that in November of 1953 he worked on the power saw on several occasions. He stated that on the first occasion he worked for approximately a 35 or 40 minute period. He was taken to the machine by an assistant to Mr. Hartfield. Claimant had never operated a saw on a regular basis.
“On January 11, 1954, claimant testified that Mr. Hartfield's assistant, an inmate, called him over to the saw, and asked him to cut out some chair seats. It appears that the chair seats in question were made of birch wood. They were approximately 18 to 24 inches wide. The wood in question was placed on the saw table to the right side of the blade. It appears that there were pencil lines drawn on the wood to indicate the line to be cut by the saw. Claimant was wearing gloves on his hands at the time that he guided the boards through the blade. Respondent’s witness, Mr. Hartfield, testified that claimant had been repeatedly warned not to use gloves while operating the saw. Claimant contends that he was issued the gloves from the office in the furniture factory, and that he used them on many occasions while operating machines in areas where he could be seen by the supervisory personnel, and that he had never been told not to use the gloves. There is no testimony in the record as to why it was an improper procedure to use gloves while operating a power saw.
“Plaintiff was asked what occurred to him as he was pushing the lumber through the power saw. He stated as follows on page 13 of the transcript:
‘A. I was — I remember putting the seat into the saw, and was pushing it up, and—
Q. You say pushing it up—
A. I was guiding it through.
Q. Were you pushing it away from you?
A. That’s right, That’s correct, and I looked up, and I noticed I didn’t have no finger, and my thumb was cut.'
“On cross examination it was brought out that the chair seat, which was being cut, was placed in a form or jig, and that said jig would keep the piece steady as the cut was made on the chair seat. The form would be pushed with the left hand, and held steady with the right hand. On page 42 of the transcript, claimant testified as follows:
‘Q. What would cause the form to slide along with the wood?
A. Your hand would be holding it between the form — to keep—
Q. Your left hand would be holding part of the form too?
A. That’s right.
Q. As well as the chair — would?
A. And it would slide right along with it.
Q. And as you were sliding it along on this particular day, your right hand got caught in the saw blade, is that right?
A. Yes, that’s right. The pressure from the glove or something pulled it in, I don’t know how, exactly.
Q. You noticed something pulling it in?
A. I don’t know just exactly how it happened, all I know is I looked up, and my finger was off, and my thumb was cut.'
“On page 90 of the transcript Mr. Shannon was asked by the Commissioner whether he was using the jig at the time he lost his index finger. He stated that he was not using the jig, that lines were drawn on the chair seats, and that he was following these lines free hand while making the saw cuts.
“There was no guard present on the saw. Mr. Hartfield testified that there had never been a guard on the saw during the period that he had been superintendent of the factory, which would cover a period of approximately thirteen years.
“Respondent’s exhibits Nos. 1 through 4 illustrate the saw in question. There is some dispute as to whether the claimant was using the saw with the permission of the superintendent.
“However, claimant testified that he used the saw with the permission of the assistant to the superintendent, another inmate. There was also some question as to whether claimant was using the proper gloves, and if claimant should have been using any gloves at all in the operation of the saw.
“Respondent’s exhibit No. 5 shows the condition of claimant’s hand.
“In the opinion of this Commissioner, claimant has failed to sustain the burden of proof in establishing negligence on the part of respondent, and in proving himself free of contributory negligence. The observance of proper safety rules would indicate that respondent should have provided a guard on the saw in question. However, there is no proof in the record that the failure to provide such a guard was instrumental in causing claimant to lose his finger. In the opinion of this Commissioner, it is not sufficient for claimant to merely testify that he does not know how the accident occurred, but that he looked up and that his fingers were gone. It is, therefore, respectfully suggested that claimant's claim be denied.”

In denying an award, this Court would be remiss if it did not comment upon the palpable violation of statutory duty by respondent. In Moore vs. State of Illinois, 21 C.C.R. 282, this Court held that, while a prisoner cannot sue for a violation of the Health and Safety Act, as he is not considered to be an employee as such, yet “we will not create an anomaly by holding that a food grinder without a hopper used by a private person is dangerous, while a similar unequipped grinder used by respondent is not dangerous. Respondent should in this case be held to the same standards, as it by law compels others to abide by.”

We, therefore, hold that the failure of respondent to equip the circular saw 'with a protective guard was inexcusable negligence.

We further find that claimant has failed to establish that he was free from contributory negligence, and, for that reason alone, the claim must be denied.

Opinion on Rehearing

On July 5, 1961, claimant, LeRoy Shannon, by John R. Snively, his attorney, filed a petition for rehearing in this case. The matters alleged in the petition have been discussed for rehearing in the case of Craven vs. State of Illinois, No. 4866.

Upon further review and consideration, the Court does not find grounds for reversing the decision heretofore handed down.

The petition for rehearing is, therefore, denied.


author: Tolson, C. J. Tolson, O. J.

text:
    (No. 4866
    Jimmy Craven, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1961.

      Petition of Claimant for rehearing denied July 28, 1961.

    John R. Snively, Attorney for Claimant.
    Grenville Beardsley, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Jimmy Craven, a former inmate of the Illinois State Penitentiary at Joliet, Illinois, filed his complaint seeking an award for injuries received while working on a jointer, which was located in the woodworking shop.

The case was argued orally on April 21, 1961, and the Court, after examining the pleading briefs and Commissioner’s Report, finds that the latter fairly states the facts, and arrives at the proper conclusion.

The Court, therefore, adopts the Report of Commissioner Presbrey, which is set forth as follows:

“The evidence in the above entitled cause was heard and taken on December 4, 1959, in the City of Joliet, Illinois. John R. Snively represented claimant, Jimmy Craven, and Samuel J. Doy, Assistant Attorney General, represented respondent, State of Illinois.
“Claimant, Jimmy Craven, a former inmate of the Illinois State Penitentiary, has brought this action to recover alleged damages for personal injuries sustained by him while an inmate in the penitentiary. It appears that on February 15, 1957 claimant was assigned to the machine and maintenance shop in the penitentiary. Respondent contended that he was assigned to said duties after expressing an interest in such work, while claimant contends he was ordered to do work in the machine shop.
“On April 7, 1957, claimant was helping to make screens for the mess hall in the penitentiary. He was working in conjunction with two or three other inmates. While making said screens, claimant was using a jointer.
“A jointer is a woodworking machine. It is used primarily to smooth wood surfaces. The cutting operation is performed by knives set in a cylindrical shaped head, which in turn is powered by a motor. On each side of the knife is a steel table. These tables can be lowered or raised independently. Usually, when the machine is operated, the table nearest the operator is lowered as the board being surfaced is pushed through the cylindrical head the planed surface slides on the opposite table, which is in a raised position. A metal guard is positioned over the revolving cutting head and knives. It is held in place by a spring. Its normal position is over the cutter head. As the wood surface to be planed is pushed through the cutter head, it pushes back the guard in question. The spring maintains a tension on the guard so the knives are not exposed.
“As the board being planned by claimant was pushed over the cutter head, the guard swung away from its position over the cutter head due to the fact that the spring, which held the guard in place, was broken. The accident occurred on April 7, 1957. It appears that the spring in question was broken on the previous day while the machine was being operated by another inmate. The accident occurred on a Monday.
“It appears that, as claimant pushed the board to be surfaced over the cutter head, the end of the board being planed suddenly went down, thereby causing the other end to fly up. In one portion of his testimony claimant stated that, in attempting to grab said board, the little finger of his left hand came in contact with the cutter heads. Iin another portion of his testimony, he stated that as the end of the board went down, and he attempted to hold it in place, the little finger of his left hand and the middle finger of his left hand were injured.
“There is testimony that, in addition to the broken guard, the one table was in a lowered position rather than its normal raised position. Claimant stated that he did not know the machine was not properly adjusted until after the accident when he was told of this by one of the guards.
“As a result of the accident, claimant lost the distal joint of his little finger, and his middle finger was swollen. At the time of the accident claimant was 34 years of age. Prior to his imprisonment he had been a mason and cement finisher. He earned approximately $3.17 an hour. At the time of his hearing he was employed as a laborer, because he testified that he was unable to do cement work. He earned $2.88 an hour as a laborer. In the opinion of this Commissioner, this claim for damages should be denied. It appears that both claimant and respondent were guilty of negligence. Claimant was guilty of negligence in not seeing that the guard in question was in proper working order. It would also appear that, before an inmate is allowed to operate a machine, it should be inspected to see that it is adjusted properly. However, claimant was guilty of negligence in continuing to operate said machine when he discovered that the guard in question was not properly engaged. It is obvious that, when the board first struck the guard and pushed it aside, the machine should have been stopped until the guard was properly in place. It would also appear that claimant should have inspected the machine before attempting to operate it to determine if it was properly adjusted.
“It is rather curious that claimant did not discover that the far table was in a lowered position rather than in a raised position when he operated the gauges to determine the depth of his cut on the board in question. It would appear that claimant was guilty of contributory negligence, and that his claim should be denied.”

An award is, therefore, denied.

Opinion on Rehearing

Tolson, O. J.

On June 23, 1961, claimant filed a petition for a rehearing of this case, and, as grounds for same, suggests the following:

1. The common standards of safety by which the duty of the employer to the employee and the master to the servant is measured in private business or industry are applicable to the State.

2. Where the State is guilty of wilful and wanton misconduct, the defense of contributory negligence is not available to it.

3. The claimant was not guilty of contributory negligence.

As to point one, there is no dispute as to the rule of law that the State is held to the same standards in principle that apply under the Health and Safety Act (1959 Ill. Rev. Stats., Pars. 137.1 to 137.21).

In Moore vs. State of Illinois, 21 C.C.R. 282, this Court held that a convict was not an employee of the State, and, hence, is thereby prevented from maintaining an action under the Health and Safety Act. Yet this Court would not create an anomaly by ruling that a food grinder, without a hopper, used by a private citizen is dangerous, while a similar grinder used by the State was not dangerous.

Claimant further argues that the defense of contributory negligence is not available, and cites the Moore Case, supra, as authority. As indicated in the opinion on page 290, respondent urged that claimant assumed the risk, and was guilty of contributory negligence. The Court held that neither defense was available in this case, but further stated “We do not, however, hold that such doctrines can never be asserted against a convict, hut merely conclude that they do not apply in this case.”

As to point two, there is no evidence of wilful and wanton misconduct by the State.

As to point three, claimant has the burden of proof of establishing that he was free from contributory negligence. Not only has he failed in this regard, but the evidence discloses that he was, in fact, guilty of contributory negligence.

The petition for rehearing is, therefore, denied.


text:
    (No. 4762
    Christine Koski, A Minor, Steven Koski, A Minor, and Deborah Koski, A Minor, By Clarence L. Koski, Their Father and Next Friend, and Clarence L. Koski, Administrator of the Estate of Catherine May Koski, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 22, 1961.

    Jerome J. Nudelman, Attorney for Claimants.
    William L. Guild, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On February 25,1957, claimants by Jerome J. Nudelman, their attorney, filed a complaint seeking an award for the death and the several injuries sustained by claimants due to the alleged negligence of the State of Illinois.

The case was heard by Commissioner George Presbrey on February 9, 1959, and was thereafter reassigned to him for the taking of further testimony, which was completed on April 6, 1960.

It was stipulated at the first hearing that the accident occurred on 87th Street near the intersection of Laurel Avenue, and that 87th Street was under the jurisdiction, control and maintenance of the State of Illinois.

The facts of the case are not in dispute, and are set forth in claimants’ brief as follows:

STATEMENT OF FACTS
“This occurrence took place on May 8, 1955, between one and two o’clock in the afternoon, on 87th Street, a public highway running east and west, at or inear its intersection with Laurel Avenue in Cook County, Illinois.
“Claimants lived at 10725 South Calumet Avenue. May 8, 1955 was Mother’s Day, and the family was on its way to see a new home that they had hopes of buying. They had left their house at 10725 South Calumet Avenue, and were, just prior to the accident, proceeding west on 87th Street near its intersection with Laurel Avenue.
“The accident happened suddenly and without any warning. The Koskis were driving behind a 1951 Plymouth driven by Catherine McNamara. Miss McNamara had a friend with her, Felicia Wierzbicki, and were returning home after a Sunday of horseback riding.
“Robert F. Michniak was driving his one and one-half ton dump truck east on 87th Street. He had his partner Joseph L. Jakubec, II, with him, and Jakubec’s son, Joseph L., III.
“At the intersection of Laurel Avenue, in the eastbound lane of traffic, there was a large rectangular hole and broken portion of pavement, approximately eight feet by four feet, and was approximately four inches in depth. The road itself is a narrow two lane highway suitable for one lane of traffic to proceed easterly and one lane in a westerly direction.
“As Mr. Michniak proceeded easterly, his truck suddenly bumped into the shattered section of the highway, causing the heavy truck to veer to the left and into the westerly lane of traffic. The track sideswiped the oncoming 1951 Plymouth of Miss McNamara, and the Plymouth went into the ditch on the south side of the road. The track now completely out of control collided head on with the 1955 Ford driven by Mr. Koski.
“Two days later Mr. Koski regained consciousness. He was in the Little Company of Mary Hospital in Evergreen Park, Illinois. Mrs. Koski had died immediately after the accident, and, because Mr. Koski was on the critical list, they would not tell him of his wife’s death. His three children were injured, and were in a room by themselves. Mr. Koski woke up with a terrible pain in his head, and his entire right leg was in a cast. He had a broken rib, a cracked kneecap, and a broken bone in his right ankle. The upper and lower portion of his lip had stitches taken in them.
“Dr. Eugene F. Dolenheide of 12757 South Western Avenue, Blue Island, Illinois, was the attending physician. Mr. Koski remained in the hospital from May 8, 1955 to May 22, 1955. Two of Mr. Koski’s children, Steven and Deborah, were able to come home with him on May 22. Christine remained in the hospital ’till May 28, 1955. Christine’s injuries consisted of a broken right leg, head injuries and a concussion. Christine was treated by Dr. Dolenheide and Drs. Spaeth and Sacks while in the hospital. Although she was released from the hospital on May 28, 1955, there was repeated care necessary due to later complications, and this care is still going on. A re-operation was needed and performed by Dr. Gibson at Blang Children’s Memorial Hospital in Des Moines, Iowa. This second operation kept her in the hospital longer than a week. She is still quite emotionally upset and nervous.
“Steven, who was seven years old at the time of the accident, suffered a concussion, a fracture to his right wrist and a ruptured spleen. His spleen was removed in an emergency operation after the accident at the Little Company of Mary Hospital. Dr. Dolenheide was in charge with Drs. Spaeth and Sacks in consultation. Steven still evidences signs of the accident in that he repeatedly gets headaches, and finds that he must watch his diet due to the removal of his spleen.
“Deborah, who was three at the time of the accident, was left with scars on her cheek and forehead. The scar on the forehead has turned white, and is approximately two inches by two inches. It is a solid mass. The scar on the right cheek is a linear one, curved and about three inches long. It cannot be determined at this time whether plastic surgery will permanently remove the scars.
“Mr. Koski, as a result of this accident, was not able to work until September of 1955. For a period of thirty months he took a reduction in pay from $500.00 to $420.00 a month. He is now back in management with the Kresge Company. But, it was not until June of 1958 that he was able to regain the position he previously held.
“At the second hearing the testimony for the most part was limited to the medical aspects of the case, and Drs. Robert Meany and Eugene Dolenheide related the nature of the injuries sustained by the several claimants, which will be summarized at the close of this opinion.”

Respondent did not offer any evidence in the case other than a Departmental Report, which admitted that an area of pavement had deteriorated in the intersection of Laurel and 87th Street, which measured five feet in width, and extended from the centerline of the pavement to the south edge, a distance of ten feet.

Claimant did not attempt to prove, nor did respondent acknowledge actual notice of the dangerous condition of the highway. If claimants are to recover an award, constructive notice must he established by the evidence in this case.

Mr. Edward Schuda, a deputy sheriff of Cook County, was called to the scene of the accident. He testified to the size and location of the hole in the pavement. He further stated that he traveled this area in the performance of his duties, and that the hole had been in this condition for at least a month.

This Court has held that there cannot be any hard or fast rule in determining when it can be said that the State had “constructive notice” of a dangerous condition, and each case must be decided on its own particular facts. Visco vs. State of Illinois, 21 C.C.R. 480.

From the evidence, it is apparent that the State did not post warning signs, nor make repairs for the period of a month. This leads to the only conclusion that the State did not use reasonable care to maintain its highway, and must be charged with constructive notice of a dangerous condition.

Claimants were entirely free from contributory negligence, and, as a family, suffered a catastrophic loss, because of the negligence of the State.

Commissioner Presbrey made the following recommendation in his report:

“The funeral expenses of Catherine May Koski, deceased, amounted to the sum of $904.55. In the opinion of this Commissioner, for the wrongful death of Catherine May Koski, the damages should be assessed at the sum of $7,500.00, the maximum provided by statute at this time.
“Clarence Koski’s hospital bills amounted to the sum of $1,278.45. In the opinion of this Commissioner, he should be awarded the sum of $6,000.00 for his expenses, loss of earnings, pain and suffering, and injuries.
“Deborah Koski’s medical expenses amounted to the sum of $231.90. For her medical expenses, scarring, pain, and other injuries, she should be awarded the sum of $3,000.00.
“Steven Koski’s, age seven at the time of the accident, medical expenses amounted to the sum of $618.25. He should be awarded the sum of $7,500.00 for the fracture of the right wrist, loss of the spleen, pain and suffering caused by said accident.
“Christine Koski’s, age four at the time of the accident, medical expenses amounted to the sum of $545.17 as of June 27, 1955, for the fracture of the right femur, pain, suffering, and future medical attention. She should be awarded the sum of $7,500.00.”

The Court finds that the Commissioner’s conclusions as to liability is in accordance with the evidence, but that his recommendations for awards should be modified in certain instances, as hereinafter set forth.

An award is, therefore, made to Clarence L. Kosld, as next friend of Christine Koski, a minor, in the amount of $7,500.00.

An award is, therefore, made to Clarence L. Koski, as next friend of Steven Koski, a minor, in the amount of $3,000.00.

An award is, therefore, made to Clarence L. Koski, as next friend of Deborah Koski, a minor, in the amount of $1,000.00.

An award is, therefore, made to Clarence L. Koski, Administrator of the Estate of Catherine May Koski, deceased, in the amount of $3,500.00.

An award is, therefore, made to Clarence L. Koski, in the amount of $6,000.00.


text:
    (No. 4775
    Kralis Poultry Company, Inc., A Corporation, and Great American Insurance Company, Subrogee, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

      Petition of Claimants for Rehearing denied October 27, 1961.

    John J. Yelvington, Attorney for Claimants.
    Grenville Beardsley, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Kralis Poultry Company, Inc., A Corporation, and Great American Insurance Company, Subrogee, have filed their complaint against respondent growing out of an accident, which occurred on June 14, 1956, on U. S. Route No. 50, approximately three-fourths of a mile east of the City of Olney, Richland County, Illinois.

The record consists of:

1. Complaint

2. ' Departmental Report

3. Transcript of evidence taken on April 10, 1958

4. Transcript of evidence taken on January 26, 1959

5. Motion of claimants for leave to waive the filing of abstract and brief

6. Proof of service of a copy of the motion of claimants for leave to waive the filing of abstract and brief on the Attorney General

7. Order of the Chief Justice granting the motion of claimants for leave to waive the filing of abstract, brief and argument

8. Statement of fact in lieu of abstract, brief and argument, together with attached certificate of service of a copy on the Attorney General

9. Statement, brief and argument of respondent

10. Commissioner’s Report

On the above mentioned date, respondent, through the Division of Highways, was engaged in widening ditches and leveling shoulders along U. S. Route No. 50. In the course of this work, several men were employed, who were using dump trucks, endgate loaders and other necessary quipment.

The employees of the Highway Department had erected warning signs, yellow and black in color, 24" x 24", indicating “Repair Zone”, “Barricade Ahead”, “Slow”, and “One Way Traffic.” A flagman was also stationed within the area.

The 1956 Chevrolet, 2 ton truck of claimant, Kralis Poultry Company, Inc., was being operated by one of its employees, Dwight Holman, whose duties consisted of buying poultry and eggs, and transporting them in Indiana and Illinois. At the time of the accident in question, the truck was loaded with eggs and poultry.

Mr. Holman was driving the truck within the repair zone area at or about the hour of 2:00 P.M. on said date, and at said time the road was dry and visibility was good, even though it was cloudy at said time. At said time and place, Mr. Holman was driving said truck in a westerly direction on the concrete slab, which was estimated to be approximately 18 feet in width.

Just prior to the accident, the Highway Department had a dump truck, which was under the control and operation of Mr. C. R. Stine, dumping dirt on the north shoulder of said highway.

Also just prior to said time, there was another vehicle, which has not been identified in the record, which was traveling in an easterly direction, but was not involved in said accident.

There seems to be no question but what claimant’s, Kralis Poultry Company, Inc., agent was aware of the repair work being done on said highway for a distance of several hundred feet, and that he was sufficiently warned by signs and the flagman to reduce his speed and to travel with caution through this particular area.

There is very little dispute as to what happened just prior to the impact. As Mr. Holman approached the area where the dirt in the dump truck was being unloaded, he testified he noticed the operation, that the truck was facing in a northwesterly direction, mostly west, and that the dump box was being lowered. He then stated that when he was within 50 feet of the truck, it pulled out onto a portion of the concrete slab, traveling not faster than three or four miles per hour, and that his truck came in contact with it, causing damage to his truck and breakage of eggs and loss of poultry, being the cargo transported by him for Kralis Poultry Company, Inc., one of the claimants.

The impact threw the operator of the dump truck out of his truck, and pushed it for a considerable distance. Claimant’s truck traveled some 75 feet or more after coming in contact with the slow moving truck, and extensive damage was done to the truck, for which the subrogation claim is being made. In fact, there was damage to the truck in the sum of $657.24.

Mr. Stine, the State’s agent, testified that he did not see claimant’s truck approach. Claimant’s agent, Mr. Holman, testified that he was aware of the work being carried on, and that his truck was only moving at the rate of 15 miles per hour at the time of the impact, and that, just prior to the impact, he blew his horn, applied his brakes, and swung to the left. Mr. Holman further stated that the flagman slowed him down, and that he was driving at a rate of about 25 miles per hour.

The only witnesses testifying as to the occurrence were the driver of claimant’s truck, Mr. Holman, and the driver of respondent’s truck, Mr. Stine. Two other State employees were called as witnesses, who testified as to certain physical facts and the location of the vehicles after the impact, but they did not see the actual impact between the two trucks.

The trial was held by the Commissioner on two separate dates, and on the first date the Attorney General’s office was not represented, so that there was no cross-examination of claimant’s witness, Mr. Holman. We believe that a lot could have been developed by cross-examination of this witness.

The State did not file an answer, so, therefore, under our rule, a general traverse or denial of the allegations will be considered.

There is testimony to the effect that Mr. Holman pleaded guilty to a traffic violation, but the section of the statute or the violation that he was charged with does not appear in the record. We could only assume that he was driving too fast for conditions. However, it is an admission, and is not denied, even though it was not proven in the proper manner. Therefore, we cannot overlook the charge and disposition of same.

We have held many times that the State of Illinois is not an insurer of all persons, who travel upon its highways. Furthermore, that, with the heavy traffic today, constant repair work is being done by the Highway Divsion for the convenience, comfort and safety of all those traveling thereon, and that, in view of this, the public using the highways have a certain responsibility in the operation of their vehicles to protect employees and to guard and protect their own property.

The burden of proof at all times is upon claimant to prove freedom from contributory negligence, the negli-' gencc of respondent being the proximate cause of the accident, and, thirdly, the injuries.

There is no question in our mind but what Mr. Stine was guilty of negligence in failing to see the approaching Kralis Poultry Company’s truck. However, we cannot overlook the physical facts as to the extensive damage done to the vehicles, the distance the vehicles traveled after the impact, and the warnings that were given to Mr. Holman.

In approaching and driving through the repair zone, Mr. Holman is chargeable with using reasonable care to guard against the possibility of what actually occurred in this particular situation, and, therefore, we cannot help but feel that he was driving- too fast for the conditions, and that he was sufficiently warned of this. It is, therefore, our opinion that he was guilty of negligence in contributing to this accident, which resulted in the damages of claimants.

It is, therefore, the order of this Court that the claim of Kralis Poultry Company, Inc., and Great American Insurance Company, Subrogee, be denied.


author: TOLSON, C. J.

text:
    (No. 4893
    Armour and Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 28, 1961.

      Petition of Respondent for Rehearing denied October 27, 1961.

    Thomas G. Cronin, Attorney for Claimant.
    William G. Clark, Attorney General; Lester Slott and Harold A. Cowen, Assistant Attorneys General, for Respondent.
   TOLSON, C. J.

On December 4,1959, Armour and Company, A Corporation, filed its complaint against the State of Illinois for an award in the amount of $3,078.00.

The facts of this case are not in dispute, and may be stated as follows:

On December 9,1957, Michael Killaney, an employee of Armour and Company, was driving a company truck in a westerly direction along and upon McDonough Street Bridge in Will County, Illinois. As he drove up to the incline, he noticed lights flashing ahead of him, and stopped about twenty feet behind the moving part of the bridge that had started to rise. By this time, the gates behind him had closed, so that he could not move in either direction. Directly over the truck a heavy counterweight, descended, and crushed the truck so that it became ai total loss.

Claimant alleges that the bridge tender was negligent in failing to give proper signals, and to lower the gate on the east side before he opened the bridge.

Respondent did not offer any evidence in the case other than a Departmental Report. The latter does not indicate that the bridge tender looked both ways before he started to open the bridge, and it would appear that he directed his attention to the west end of the bridge-before he lowered the near side (east side) gates. By this time claimant’s truck was in such a position that it could not be moved forward or backward.

The Court, therefore, finds that respondent was. guilty of negligence as charged in the complaint.

The evidence discloses that the truck and equipment cost $6,216.63 in 1954, and had been depreciated to-$2,448.00. The evidence further discloses that claimant was obliged to rent a comparable truck for a period of twenty-one days at a cost of $30.00 per day.

An award is, therefore, made to claimant, Armour and Company, in the amount of $3,078.00.


author: TOLSON, C. J. Per Curiam:

text:
    (Nos. 4816 and 4822—Consolidated
    Dolores Laboda and Sam Anzalone, Administrator of the Estate of Sam Anzalone, Jr., deceased, Claimants, vs State of Illinois, Respondent.

      Opinion filed September 22, 1961.

      Petitions of Claimants for Rehearing denied December 15, 1961.

    Samuel Bass and D. Rossi, Attorneys for Claimants.
    Grenville Beardsley, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   TOLSON, C. J.

The above eases were consolidated by this Court, as they both arose out of the same transaction. Both causes of action arose out of an automobile accident, which occurred on April 6, 1957. Dolores Laboda was injured as a result of a collision with an automobile driven by Sam Barranco, in which Sam Anzalone, Jr., was a passenger. Mrs. Laboda was very seriously injured, and Sam Anzalone, Jr., was so seriously injured that he expired within ten days after the accident. The facts are undisputed, and respondent introduced no witnesses.

On April 6, 1957, at about 5:00 P.M., claimant, Dolores Laboda, was driving north on Mannheim Road. This is also known as U. S. Route No. 45, and is maintained by the Highway Department of the State of Illinois. The highway consists of four lanes separated by a concrete divider.

At about the same time, Sam Barranco was driving-south on Mannheim Road in the inner lane. Just prior to the accident, a car being driven in the west lane pulled in front of the Barranco car. Mr. Barranco thereupon drove his car to the west lane, and hit a large hole in the road, which caused the car to go out of control, cross the concrete divider, and hit the Laboda car.

From a reading of the transcript, it may be assumed that the unknown driver of the car in the west lane saw the holes in the pavement, and pulled sharply in front of the Barranco car. Mr. Barranco, thereafter driving into the west lane, did not have an opportunity to see the holes in time, for almost simultaneously his car hit the holes, and went out of control when he entered the west lane.

As a result of this head-on collision, Mrs. Laboda suffered serious and permanent injuries, and Sam Anzalone, Jr., who was riding in the front seat of the Barranco car, was killed.

The State did not introduce any evidence in these cases, but from the witnesses, who testified for claimants, it is apparent that Mannheim Road is a heavily traveled highway. Donald Kagebein, a disinterested witness, stated that he traveled this road twice a day; that- on March 18 a large hole developed in the west lane of travel, which grew progressively larger day by day, and by April 6 there were several holes, two to three feet wide and eight inches deep, in the traveled portion of the highway.

Claimants’ exhibit No. 1, a photograph of the highway taken on the day of the accident, indicates that nearly all of the west lane of travel is chopped up with one or more holes, so that it is virtually impossible to drive in the west lane without hitting one or more of them.

The gist of the complaints is to the effect that respondent had actual or constructive notice of the dangerous condition of the road, and did not either repair or post warning signs for the protection of the traveling public.

Respondent in its brief relies on the proposition of law that it is not an insurer of all those traveling on highways or being on property owned by the State, but is only required to keep its roads reasonably safe for ordinary travel.

At the outset, it is clear that claimants have not introduced any evidence to show that respondent had actual knowledge of the condition of the highway. For claimants to recover, it must be established from the evidence that respondent had constructive notice under the facts of these particular cases.

In the case of Visco vs. State of Illinois, 21 C.C.R. 480, this Court at page 487 stated:

“There cannot be any hard or fast rule in determining when it can be said that the State had ‘constructive notice’ of a dangerous condition, and each case must be decided on its own particular facts.”

In the instant cases, the undisputed evidence is to the effect that a hole was discovered on or about March 18, 1957, and that said hole became larger day by day, so that on April 6, 1957, the date of the accident, a series of holes covered the entire west lane of travel.

Mannheim Road is a heavily traveled street. Yet, for a period of eighteen days the agents of the State charged with the inspection, repairing and posting of warning signs did nothing about the situation.

As to the charge of contributory negligence, the facts disclose that Mrs. Laboda was injured, through no fault of her own, by a car that crashed over a concrete divider, and struck her car head-on.

Claimant’s intestate, Sam Anzalone, Jr., was likewise free from contributory negligence for, at the time of the accident, he was unable to warn Sam Barranco in time that the west lane of travel was in a dangerous condition.

From a review of the evidence, this Court finds that respondent had constructive notice of the dangerous condition of the road, and was negligent in failing to either repair or post warning signs.

In determining the matter of damages, the Court is confronted with a problem apparently never decided before. The statutory limit for cases sounding in tort in the Court of Claims in 1957 was $7,500.00. The statutory limit for cases under the wrongful death statute in 1957 was $20,000.00.

Dolores Laboda received the sum of $20,000.00 under a covenant not to sue, and Sam Anzalone, Administrator of the Estate of Sam Anzalone, Jr., received the sum of $5,969.00 under a covenant not to sue.

The law is clear that there can be but one satisfaction for a wrong, and, where there are joint tort feasors, and one is released under a covenant not to sue, the person, who is sued, is entitled to a credit of such amount on the judgment rendered against him. (Puck vs. City of Chicago, 281 Ill. App. 6.)

This Court has considered the rule announced in the Court of Claims of the State of New York in consolidated cases, Sagan Buss vs. State, 128 N.Y. Sup. 2nd 924:

“There is only one tort or injury established by the record in the Buss claim, and he can have but one satisfaction, but, when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and in good conscience that the law will not permit him to recover again for the same damages. But it is not easy to see how he is so affected until he has received full satisfaction, or that which the law must consider as full."

The doctrine would be of persuasive authority in a court of record in this State where the matter of damages was not limited by statute, but the Court of Claims is a creature of statute, and the amount allowable in matters sounding in tort is limited by the Act.

In a recent case, Price vs. Wabash R.R. Company, 30 Ill. App. 2d 115, the court held that, where a plaintiff received a payment for a covenant not to sue, such payment may be deducted from the damages recoverable from persons, whose tort liability arises out of the same circumstances, irrespective of whether the covenantee is made a party to the suit.

The Court, therefore, concludes that it must deduct any payments made under a covenant not to sue from the statutory limits of the Court of Claims Act.

An award to Dolores Laboda is, therefore, denied, as the amount of $20,000.00, paid to her under a covenant not to sue, exceeds the jurisdictional limits of $7,500.00 in force in 1957.

An award is made to Sam Anzalone, Administrator of Estate of Sam Anzalone, Jr., in the amount of $1,531.00, the said amount being the difference between the sum of $5,969.00 paid under a covenant not to sue and the statutory limit of $7,500.00 in force in 1957.

Opinion on Rehearing

Per Curiam:

Claimants in the above entitled cause filed their petitions for rehearing, and allege that the Court misapprehended their contentions with reference to the effect of a covenant not to sue.

The Court found in its opinion that it was governed by the statutory limits in cases sounding in tort, and that, according to the decisions of our courts, we were obliged to set off against such limits any sums paid under a covenant not to sue.

The Court recognized that claimants were faultless on their parts, and that their damages exceeded the amounts received under their respective covenants. However, this Court is unable to make an award in excess of the amount authorized by the statute.

The petitions of claimants for rehearing is, therefore, denied.