text:
    (No. 5062
    Village of Kingston Mines, A Municipality, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Leiter, Newlin, Fraser, Parkhurst and McCord, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Village of Kingston Mines, filed its complaint in this Court on September 17, 1962, seeking an award of $9,550.00 for damages to its streets, drainways and storm sewer system caused by the failure of the State of Illinois to properly build a new highway with its attendant slopes and storm drainage system. Subsequently, claimant filed an amendment to the complaint alleging additional damages of $16,500.00, and praying for a total award of $25,000.00.

The Village of Kingston Mines is in Peoria County, and is located along the bank of the Illinois River. Prior to the time of the matters complained of, State Bond Issue Route No. 9 extended through the north side of the village, running east and west. North of the highway was a bluff of approximately 100 feet in height, which was covered with trees and brush. Water from the hillside drained primarily through three gullies to a ditch along the north side of State Bond Issue Route No. 9, and thence into four 2' X 2' box culverts under the highway, and from the culverts emptied into the drainage system of the Village, consisting of storm sewers, culverts, inlets, and sodded ditches. The sewers varied in size from 10 to 18 inches, and were located on the east and west sides of the north and south streets, and drained southward to the river. From the evidence, it appears that the storm drainage system was adequate to carry all water prior to the construction of the new highway.

Construction was started on a new highway in June, 1960, designated as U.S. Route No. 24, through the north edge of the Village, parallel to State Bond Issue Route No. 9, and located approximately 120 feet south of the latter. The new road was from 9 to 14 feet lower than the old highway. The road was officially finished in June, 1962, but was opened to traffic during most of the construction period.

U.S. Route No. 24 was constructed by an independent contractor pursuant to plans and specifications, and was under the direction and control of the Highway Department of the State of Illinois. The plans and specifications did not designate the location of borrow ground, but provided for all required earth and grading necessary in the construction of the new highway. The contractor, in building the highway, procured earth for fills from the hill located on the north side of the old highway No. 9, and, in the course of his work, removed trees and vegetation from the hillside in such manner that there was no restraining vegetation to hold back or diffuse the flow of water. This resulted in the washing of large amounts of mud and earth from the hillside into the ditch along the old highway.

The evidence shows that concrete run-offs were constructed on the new project along the new highway at a steep slope, and the surface water was carried at a high velocity into the storm drainage system of the Village. The result of the construction project, removal of restraining vegetation from the steep hillsides, and the increased velocity with which the runoff water was thereafter carried, caused several floods, and caused a great deal of damage in 1961, in the course of which the storm drains of the village were filled with sticks, mud, and silt. The water and debris were then forced to flow down the streets of the village and over the lawns and yards of the residents.

The record shows that, upon complaint by the Village officials during construction, the plans and specifications were varied during the course of construction by adding a new 36" sewer. This new sewer extended from the north on Third Street to the river with clean-outs in each block. A second 24" sewer was added, which extended east on Third Street from Adams to Jefferson, and into a 36" sewer. Flood damage was caused by mud and debris flowing down Adams, Monroe, and Washington Streets. After a heavy rain in June, 1961, the entire town was covered with a sheet of water, mud, and other debris.

It seems quite apparent from the evidence that the plans and specifications for the construction of the new highway did not make adequate provisions for the drainage of water, and the Village has suffered damage as a result thereof. The extent of the damage, itemized in the complaint, is supported by the evidence, and is not controverted by respondent.

Our court has previously held that surface water flooding and damages occasioned by negligence of the State of Illinois is compensable in the Court of Claims. (Doerr vs. State of Illinois, C.C.R. 314; Kroencke vs. State of Illinois, 21 C.C.R. 193.) It is apparent that the highway engineer should reasonably have foreseen that the use of a precipitous hillside as a borrow pit would accelerate the velocity of surface waters so as to cause damage to the streets and drainage system of the Village of Kingston Mines, and we are of the opinion that the State of Illinois should be responsible therefor.

The Village of Kingston Mines has been damaged in the amount of $9,550.00, and in addition thereto, it was necessary for the Village to extend the sewer system on the west side of Adams Street and the east side of Jefferson Street at a cost of $3,000.00.

An award is, therefore, entered in favor of claimant in the amount of $12,550.00.


source: Caselaw Access Project

author: Pezman, J.

license: Public Domain

text:
    (No. 5100
    Nathaniel Tate, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.
    Hamper and Reiser, Attorneys for Claimant.
    William G. Clark, Attorney General; Daniel N. Kadjan, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Nathaniel Tate, seeks to recover from the State of Illinois the sum of $15,000.00 allegedly due to him by reason of the provisions of Chap. 37, Sec. 439.8C, Ill. Rev. Stats. This statute allows recovery to anyone who shall have been unjustly imprisoned in this State, provided the incarcerated person proves his innocence of the crime for which he was incarcerated . The amount of recovery is limited to not more than $15,000.00 for the “unjust” imprisonment of 5 years or less.

It is alleged that, on the night of November 2, 1960, Nathaniel Tate met Jesse Jennings at Waltons Corner, a tavern, where they engaged in normal social activities. Shortly before closing, claimant asked the said Jesse Jennings if she would drive him home. Therefore, later, claimant and Jesse Jennings, in the company of Lulabell Williams and Benny Turner, left Waltons Corner at approximately 4:00 to 4:15 A.M. on November 3, 1960, and proceeded on the supposed route home. Mrs. Jennings sat in the front seat with claimant, while Miss Williams and Mr. Turner sat in the back seat. From this point on the facts seem to be in dispute. Claimant’s position is that Turner and Miss Williams were discharged from the automobile at the corner of Springfield and Roosevelt Road, and that Mrs. Jennings and claimant then proceeded to Tate’s place of employment, the L & L Barbecue House at 3111% West Roosevelt Road, where they parked in an alley behind the restaurant. Claimant further alleges that he went around to the front door of the restaurant and entered in this manner. The back door was then opened by claimant, and Mrs. Jennings was allowed to enter. It was then approximately 4:35 A.M., and they proceeded to the rear of the restaurant. It is contended she disrobed there, and they engaged in sexual relations. After the act, it is then alleged that she went into the bathroom, and, while she was gone, claimant removed from her purse $20.00, he purportedly had given her. Later claimant was arrested when Mrs. Jennings arrived at the restaurant the next evening with two policemen and accused him of having raped her. He was subsequently indicted in the Criminal Court of Cook County on the charge of rape and robbery, and he entered a plea of not guilty to both charges. He waived his right to trial by jury, and was found guilty by the court on both charges. Claimant was sentenced to serve a term of 15 years in the Illinois State Penitentiary for the crime of rape, and was further sentenced to not less than one nor more than five years for the crime of robbery. Said sentences were to run concurrently. Claimant remained at the prison for 2 years and 4 months.

Respondent alleges facts quite similar to that of claimant, with the exception that claimant is related to have pulled a gun and forced her to discharge the other passengers in the car and to accompany him to his place of employment. It was alleged that she was under his pressure, control, and coercion at all times, including the period when the alleged sexual intercourse took place. The State contended that he forced her to engage in sexual activities and that subsequently he forceably removed the money from her purse.

The Supreme Court of Illinois reversed the conviction of claimant in his original criminal trial in People vs. Tate, 26 Ill. 2d 588, stating "we are of the opinion that the people failed to prove beyond a reasonably doubt that the sexual intercourse was without consent of the prosecutrix, or that the money was taken from purse by force or intimidation. The judgments of the Criminal Court of Cook County are accordingly reversed.”

We do not disagree with the Supreme Court and its findings of reversal in relation to the civil rights of claimant, Nathaniel Tate. The cause at hand is brought under a specific statute, i.e., Sub-par. C of Par. 439.8, Chap. 37, Ill. Rev. Stats. The burden of proof in the Court of Claims is upon claimant to prove all of the material allegations of his claim by a preponderance of the evidence. Claimant must prove that the time he served in prison was unjust; that he was innocent of the crime for which he was imprisoned; and, the amount of damages to which he would be entitled. Jack Flint vs. State of Illinois, 21 C.C.R 80; George A. Pitts vs. State of Illinois, 22 C.C.R. 258.

This Court has taken the position that the “fact” of the crime alleged to have been committed must be proven by a preponderance of the evidence not to have been committed by claimant. This position is clearly set forth in the case of Jonnia Dirkans, Claimant, vs. State of Illinois, No. 4909, where this Court stated: “We find that claimant, Jonnia Dirkans, has substantially failed to prove his innocence of the crime for which he was imprisoned. It is the studied opinion of this Court that the legislature of the State of Illinois in the language of Chap. 37, Sec. 439.8C, Ill. Rev. Stats., intended that a claimant must prove his innocence of the “fact” of the crime. It was not the intention of the General Assembly to open the Treasury of the State of Illinois to inmates of its penal institutions by the establishment of their technical or legal innocence of the crimes for which they were imprisoned. It is our opinion the legislators intended to provide a manner of recourse in the Court of Claims, with a specific amount of recovery provided, for a claimant who is able to establish his complete innocence of the “fact” of the crime for which he was imprisoned. The lawmakers of this State would not have intended to grant that recourse to the narcotic addicts, murderers, kidnappers, rapists, and other felons who obtain a reversal of their convictions upon a legal or technical basis, such as insanity at the time of the commission of the crime, or the running of the Statute of Limitations against said crime. We believe it was the intention of the legislature in creating Sec. 439.8C of the Court of Claims Act to provide a method of indemnification of persons innocent of the “fact” of the crime who have been unjustly imprisoned.” In that case, Jonnia Dirkans failed to clearly establish “proof of his innocence,” bringing forth no new evidence other than the testimony of his nightly female companion whose statements respondent proceeded to discredit.

We find that claimant, Nathanial Tate, has failed to prove his innocence of the fact of the crime by a preponderance of the evidence. The claim is, therefore, denied.


author: Perlin, C. J.

text:
    (No. 5113
    Allene Williams and Buel Williams, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Hanagan and Dousman, Attorneys for Claimants.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimants Allene Williams and Buel Williams seek recovery of $25,000.00 each for damages incurred as a result of an automobile collision with an employee of the State of Illinois Youth Commission on December 17, 1962.

The record shows that on the date in question Mrs. Allene Williams was traveling north along Illinois State Route No. 37, a through highway, at about 3:30 P.M. She was approaching its intersection with State Route No. 183, which is controlled by stop signs for both westbound and eastbound traffic. No stop signs control the northbound or southbound traffic on Route No. 37 at this intersection. Charles Weiser, an employee of the State of Illinois Youth Commission, Division of Community Services, who was returning from an interview with a ward of the Franklin County Court assigned to him, was driving his 1959 Chevrolet westbound on Route No. 183. According to witnesses, Weiser failed to stop at the sign controlling traffic on Route No. 183 at the intersection, and either failed to slacken the speed of his automobile, or, in fact, accelerated and collided with the vehicle being operated by claimant Aliene Williams. Charles Weiser was killed as a result of this collision, and Aliene Williams suffered severe injuries, including permanent total loss of the use of both legs and virtually complete loss of the use of both arms.

Several fellow employees of Aliene Williams, who were either passengers in her car or were in cars immediately behind, testified that Mrs. Williams was traveling at about 50 to 55 miles per hour when the Weiser car ran the stop sign, and collided with the Williams car. There was no evidence of contributory negligence on the part of Mrs. Williams.

A letter from the Chairman of the Youth Commission establishes that Weiser was in the course of his employment with the State of Illinois at the time of the accident.

In exchange for a covenant not to sue the Estate of Charles Weiser, with reservation of the right to sue the State of Illinois, claimant Aliene Williams received the sum of $14,000.00, and claimant Buel Williams received the sum of $1,000.00. The total amount of $15,000.00 constituted the entire amount of Weiser’s insurance policy coverage for injuries to one person.

Dr. Alan Anderson who treated Mrs. Williams since March 1,1963 testified that, based upon a reasonable degree of medical certainty, Mrs. Williams will require nursing or attendant’s care for the rest of her life to provide for her needs, such as feeding. She will endure permanent pain from being bedridden. The doctor further testified that the bills submitted for her medical care were the usual and customary charges for such services.

Claimant Buel Williams who was not present at the accident testified that he was the husband of Aliene Williams for about 22 years at the time of the hearing, and that before the accident his wife’s general physical condition was good, and she was able to perform duties as a housewife, and also work at a dress factory earning about $3,000.00 per year. He further testified that, when he is not working, he performs services for his wife, which are normally performed by a practical nurse or attendant.

Judicial notice was taken of the life expectancy tables of American Jurisprudence, 2d, that a woman bom on February 20, 1918, as of January 24, 1964 has a life expectancy of 32.1 years, and that a man born on June 13, 1914, as of January 22, 1963 has a life expectancy of 23.8 years.

Evidence was further submitted of bills incurred on behalf of Aliene Williams, which her husband is obligated to pay, and for which he has already made partial payment in the amount of $7,631.84.

Claimants allege the following “actual” damages:

DAMAGES OF ALLENE WILLIAMS
Loss of earnings:
Past loss: 12/17/62 — 1/22/64 Weekly average: $61.21 per week
Weeks lost: 55 .............................. $ 3,366.55
55 weeks pain and suffering: .................. $ 5,500.00
(Using Illinois Workmen’s Compensation Computer as guide, on all loss of use of extremities)
Total loss of use of both legs.................. $ 20,800.00
90% loss of left arm.......................... $ 10,998.00
80% loss of right arm ........................ $ 9,776.00
Future loss of earnings—
$3,000.00 per year for 20 years................ $ 60,000.00
TOTAL DAMAGES (not including future pain
and suffering): .............................. $110,440.55
DAMAGES OF BUEL WILLIAMS
Medical expenses to date for care of wife........ $ 7,631.84
Nursing and attendance care from 1/22/64 for shorter life expectancy of husband, based upon average monthly expense for nursing and attendance care alone.
$117.78 per month X 12 months............ $ 1,413.36
$1,413.36 X 23.8 years ................... $ 33,637.97
Loss of wife’s services for 23.8 years............ $ 23,800.00
TOTAL DAMAGES (Not including medical expenses for wife’s longer life expectancy): .... $ 65,069.81

There are three issues to be determined: (1) Whether the amount of $15,000.00, ($14,000.00 and $1,000.00) received for claimants’ execution of covenants not to sue the Estate of Charles Weiser must be deducted from the statutory ad damnum limit of $25,000.00 or whether the total damages should be the base for determination of the final award, although they exceed the statutory limit; (2) whether the husband of an injured claimant may recover for monies spent for her benefit; (3) whether the spouse of an injured claimant has a separate cause of action for loss of consortium under the Court of Claims Act in which he could conceivably recover up to $25,000.00 over and above the amount granted to the injured claimant.

The relevant statutory provision provides as follows:

“The Court shall have jurisdiction to hear and determine the following matters: . . .
“D. All claims against the State for damages in cases sounding in tort, in respect of which claims the claimant would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable . . . ; provided, that an award for damages in a case sounding in tort shall not exceed the sum of $25,000.00 to or for the benefit of any claimant.” (Emphasis supplied) (Ill. Rev. Stats., Chap. 37, Sec. 439.8.)

Respondent contends that any award made by this Court must be subject to the limitation of $25,000.00 to or for the benefit of any claimant and from the amount of any award made must be deducted the damages recovered by claimants for which they have given covenants not to sue. Respondent cites Aldridge vs. Morris, 337 Ill. App. 369, which holds that, where the plaintiff receives payment for a covenant not to sue from one against whom tort liability could he, 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; and Flisk vs. State of Illinois, 21 C.C.R. 363, where the Court stated:

“The maximum tort liability of respondent in this case is $2,500.00. It is admitted claimant has received the sum of $6,300.00 from persons deemed jointly responsible for his injuries. This amount, under the authority of the State of Illinois, would have to be deducted from any sum allowed by this Court, and hence no damages could be awarded.”

This Court in Laboda and Anzalone vs. State of Illinois, 24 C.C.R. 172, states the following:

“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.)”

The Court then considered the New York rule, which states that when the plaintiff has accepted satisfaction in full for the injury done him from whatever source it may come, he is so far affected 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 Court continued:

“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.”

Claimants, on the other hand, cite the recent case of Valentine vs. Peiffer, 203 N.E. 2d 179, at 182 and 183, as follows:

“It is not every award, which fixes the total damages sustained by a party. It should be obvious to all that in those cases where the legislature has placed an arbitrary limit upon a statutory recovery, a maximum verdict does not necessarily fix total damages. For instance, in the case of Trans World Airlines, Inc. vs. Shirley, 9 Cir., 295 F. 2d 678, an award of $200,000.00 for death was returned. In Illinois, a maximum recovery would have been $30,000.00, even though the evidence would have been identical. Thus it is apparent that every verdict does not represent an adjudicacation of total damages, especially where there is a statutory limitation on recovery.” (Emphasis supplied.)

Although the court in the Valentine case did not deduct the amounts received for prior settlements with common law defendants in a case under the Dram Shop Act, and did allow plaintiff to collect the maximum amount from the Dram Shop defendants, the rationale upon which the court relied was that the defendants did not raise the issue of total damages until post-trial proceedings and that this was an affirmative defense, which the defendants had the burden of proving before a verdict was reached by the jury.

Claimants also cite the case of Slone vs. Morton, 188 N.E. 2d 493, in support of their claim that any set-off should be against total damages and not the statutory limit of $25,000.00. In that case maximum recovery was allowed under the Dram Shop Act, notwithstanding that payments had also been made under the Wrongful Death Act. The court held that the Dram Shop Act and the Wrongful Death Act create different statutory rights and duties and that the nature and amount of damages provided for in the Dram Shop Act are not to be limited by the provisions of the Wrongful Death Act.

In the instant case there is no question of timeliness in raising the issue of set-off as in the Valentine case, nor are two separate and distinct statutory rights to be pursued as in the Slone case. Both cases are clearly distinguishable from the case at hand, as are the statutes involved in the Wrongful Death and Dram Shop cases different from that applicable to the instant case.

It is, therefore, the opinion of this Court that any amount received by claimants in exchange for a covenant not to sue must be deducted from the statutory limit specified in the Court of Claims Act of $25,000.00.

A husband has a separate right of action to recover damages for loss of services and consortium of his wife occasioned by personal injury to her according to the cases of Stephens vs. Weigel, 336 Ill. App. 36, 82 N.E. 2d 697, and Blair vs. Bloomington & Normal Railway, Electric and Heating Co., 130 Ill. App. 400. However, this separate right is limited by the Court of Claims Act, which allows only one recovery of up to $25,000.00 to or for the benefit of any claimant. In Bovey vs. State of Illinois, 22 C.C.R. 95 at 125, the husband of the injured claimant was not allowed to recover for his wife’s medical expenses, since they directly benefited the wife who had already received the maximum recovery allowable under the Court of Claims Act. The Court also denied any portion of housework expenses incurred for the benefit of the injured claimant and allowed only those damages proven by the husband which could not be considered as benefiting the injured wife.

Therefore, no part of Mrs. Williams’ medical expenses may be included in Mr. Williams’ claim. However, the Court recognizes that Mr. Williams has suffered extensive loss of his wife’s services resulting from the negligence of respondent’s agent.

Claimant Aliene Williams is, therefore, awarded the sum of $25,000.00, less the $14,000.00 received for the covenant not to sue, or a total of $11,000.00.

Claimant Buel Williams is awarded the sum of $8,-500.00, less the $1,000.00 already received for the covenant not to sue, or a total of $7,500.00.


text:
    (No. 5124
    Linda Eveland Shirar, Administrator of the Estate of Duane Welch Eveland, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Downing, Smith, Jorgensen and Uhl, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, as Administrator of the Estate of Duane Welch Eveland, seeks recovery of $25,000.00 for his death, which occurred as a result of an accident on March 8, 1963 at the intersection of State Route No. 133 and a road known as Jonathan Creek Road in Moultrie County, Illinois.

Claimant contends that the failure of respondent to maintain a “Stop Ahead” warning sign approximately 1,000 feet from the intersection constituted negligence, and that such negligence was the proximate cause of the collision, in that one Bheta J. Hobbs was not sufficiently warned of her obligation to stop at the intersection, and thus collided with the automobile driven by Duane Welch Eveland. It appears that claimant received $4,000.00 from the insurance company, which issued a liability policy to Bheta J. Hobbs.

In order to recover in the present action, claimant must prove by a preponderance of the evidence (1) that claimant’s intestate was free from contributory negligence; (2) that respondent was negligent; and (3) that such negligence was the proximate cause of the damage alleged.

The record shows that on March 8, 1963 at approximately 1:30 P.M., Duane Welch Eveland, age 20, was driving a red 1960 Valiant in a westerly direction along and upon Route No. 133. At the same time, Rheta J. Hobbs, age 21, was driving a white 1959 Ford automobile in a northerly direction along Jonathan Greek Road near its intersection with Route No. 133. Route No. 133 is a preferential highway to Jonathan Creek Road. A stop sign controls Jonathan Creek Road at its intersection with Route No. 133. Other signs controlling the traffic on Jonathan Creek Road included a broken “Stop ahead” sign 750 feet south of the intersection, a “Junction-Information” sign 500 feet south of the intersection, and a directional sign 300 feet south of the intersection.

Eyewitness Lester Schrock testified as follows: He was stopped at a sign controlling the traffic going south at the intersection of Jonathan Creek Road and Route No. 133. He saw a westbound red Valiant (driven by Eveland) approach the intersection on Route No. 133, and a 1959 white Ford (driven by Rheta J. Hobbs) coming towards him north on Jonathan Creek Road. Both cars entered the intersection at the same time and collided, the left front fender of the Valiant striking the right front fender of the Ford. The white Ford did not appear to stop prior to entering the intersection, nor did Schrock hear a horn or the sound of brakes. He saw no skid marks at the scene subsequent to the collision. There was a stop sign in place governing Jonathan Creek Road as it entered the intersection of Route No. 133. The day was sunny and bright. Schrock had no trouble seeing the intersection or the stop sign. Within a distance of at least 500 feet from the intersection the terrain is level in all directions. The “Stop Ahead” sign governing the northbound traffic on Jonathan Creek Road was down, but the “Junction with Route No. 133” and a directional sign were in place at the time of the accident. Schrock estimated that the red Valiant was traveling at approximately 60 to 65 miles per hour, and that the Ford was perhaps traveling at a lesser rate, but he could not tell accurately, since he was in front of the Ford.

Robert Davison, testified that he lived four miles from the intersection, and had observed that the “Stop Ahead” sign was down both the day of the accident and the weekend before it occurred. The stop sign at the intersection of Route No. 133 and Jonathan Creek Road was standing in place on the day of the accident. The stop sign is red and silver, and is not concealed, although it does not stand out against the horizon. The Junction sign and the directional signs were in place the day of the accident. They were black and white signs, and the broken sign was yellow with black letters.

William C. Hays testified he observed that the “Stop Ahead” sign in question was broken off the post on December 27, 1962, and on the day of the accident when he was taking pictures of the accident scene. The junction sign and the directional sign, as well as the stop sign, were in place on March 8, and are signs meant for traffic going north on Jonathan Creek Road. He stated that the stop sign is the ordinary and customary stop sign, red with white lettering; it is octagonal in shape, a fairly large regulation sign, and was in place right after the accident occurred.

A deposition of Rheta J. Hobbs revealed that she remembered nothing about the accident or any events occurring prior to the time of the collision. Unfortunately, the two adult passengers in her car were also killed. The two minor passengers were children too young to testify. Miss Hobbs stated she had never traveled by automobile in the area where the accident occurred.

Harold Roberts, District Traffic Engineer, Illinois Division of Highways, testified that a 30 inch “Stop Ahead” sign was placed 750 feet south of the intersection; a combination junction-information sign was placed 500 feet south of the intersection; a directional sign was erected 300 feet south of the intersection; and a 24 inch “Illinois Route No. 133” sign with double arrows was placed near the intersection. All of these signs faced south on Jonathan Creek Road. He further testified that at 65 miles per hour a vehicle’s stopping distance is 380 feet, with an additional 72 feet allowance for traveling distance and reaction time, for a total stopping distance of 452 feet. In response to the question as to whether the construction of the “Stop Ahead” sign at the location was consistent with the policy of his office, Roberts replied: “There was a choice, and I chose to erect it.”

Donald R. Goodwin, District Safety Representative for the Illinois Division of Highways, testified that he investigated the accident in question, and went to the site on March 11, 1963. He stated that Illinois Route No. 133 was the preferential road, and that the traffic on Jonathan Creek Road is required to stop by a stop sign located just to the right of the northbound lane on Jonathan Creek Road. The "Stop Ahead” sign was broken off the post, but the other signs were in place. The sight distance to one traveling north on Jonathan Creek Road is clearer than a thousand feet, and the road is straight for that distance, with a slight downgrade from the south of Route No. 133 on Jonathan Creek Road, according to Mr. Goodwin.

Whether respondent has breached a statutory duty in its failure to maintain the “Stop Ahead” sign may be determined by the following:

Chap. 95%, Secs. 125, and 126, Ill. Rev. Stats.
“Department to adopt sign manual. The Department shall adopt a manual and specifications for a uniform system of traffic control devices consistent with the provisions of this Act for use upon highways within this State. The manual shall also specify insofar as practicable the minimum warrants justifying the use of various traffic control devices.”
“The Department to Place Signs on All State Highways, (a) The Department shall place and maintain such traffic control devices, conforming to its manual and specifications, on all highways under its jurisdiction, as it shall deem necessary to indicate and to carry out the provisions of this Act, or to regulate, warn, or guide traffic.”
Manual of Uniform Traffic Control Devices for
Streets and Highways (January, 1958), P. 23.
“The STOP AHEAD (S-32 or S-32A) sign shall be used in advance of a Stop sign that is not visible for a sufficient distance to permit the driver to bring his vehicle to a stop at the Stop Sign. It may also be used for emphasis on a State route when there is poor observance of the Stop Sign. When used in this manner in advance of a junction of another State route, it shall be erected 400 feet in advance of the 1-8 or I-8A sign. (Stop Ahead-Junction.)” (Emphasis supplied.)

Testimony detailed above has established that the stop sign in question was visible for a distance of 1,000 to 500 feet. It was further established that the total stopping distance required for a vehicle traveling at 65 miles per hour is 452 feet. Therefore, the “Stop Ahead” sign in question was not mandatory within the foregoing statutory requirements, but only permissive and need not have been placed at the location in question at all. The Court concludes it must follow that failure to maintain a sign which was not required to be placed in the first instance, in no way constitutes negligence.

The Motor Vehicle Act, Chap. 95%, Ill. Rev. Stats., also provides that it shall be unlawful for any person to operate a motor vehicle on the public highways of this State without complying with the Illinois Motor Vehicle Law (Sec. 3-811); that the driver of a vehicle approaching a stop sign shall stop before entering the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting highway (Sec. 183); and that the driver of a vehicle shall stop, as required by Sec. 183, at the entrance to a through highway and shall yield the right-of-way to other vehicles, which have entered the intersection from said through highway (Sec. 167b.)

The Court further notes that the Junction sign was placed 500 feet before tire stop sign, which gave Rheta J. Hobbs sufficient warning of the crossroad to have stopped her vehicle had she not been grossly negligent in disregarding all signs, including the clearly visible stop sign. It appears to have been her negligence and her negligence alone, which prevented her from stopping her vehicle at the stop sign of the intersection, and apparently caused the tragic accident resulting in the death of Duane Welch Eveland. The Court cannot indulge in pure speculation to ascertain facts, which cannot be adduced by competent evidence.

Recause claimant has failed to prove that respondent was negligent, or that its negligence was the proximate cause of the accident, the claim must be and is hereby denied.


author: Dove, J.

text:
    (No. 5218
    O’Leary’s Contractors Equipment and Supply, Inc., and Interstate Fire and Casualty Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Clausen, Hirsh, Miller and Gorman, Attorneys for Claimants.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Dove, J.

A claim in the amount of $2,298.38 for certain personal property stolen while in the possession of the State of Illinois Highway Division, Expressway Maintenance, and leased from O’Leary’s Contractors Equipment and Supply, Inc. was filed on February 8, 1965.

A joint motion has been filed submitting this matter on stipulation, which is as follows:

“1. O’Leary’s Contractors Equipment and Supply, Inc., is in the business of owning and leasing construction equipment and supplies.
“2. On June 5, 1964, claimant, O’Leary’s Contractors Equipment and Supply, Inc., was the owner of certain personal property, to-wit:
1 Jaeger Compressor, Serial No. RC21437
1 Ingersoll Rand Pavement Breaker
2 50 ft. lengths of %” air hose 2 Moil points
“3. On that date, the State of Illinois, acting by and through Nick Matechick, its employee, requested the lease to tire State of Illinois of the aforesaid equipment.
“4. The said equipment was delivered to the State of Illinois at the Highway Department, Northwest Yard, 5027 North Central Avenue, Chicago, Illinois, and Nick Matechick signed the lease agreement, which was attached to claimant’s complaint, and which was properly identified and admitted into evidence at the hearing.
“5. Among the terms and conditions of the lease is the following part of paragraph 3:
‘The equipment shall be at the sole risk of the lessee from loss, destruction or damage, and in case any part thereof be lost, destroyed or damaged, whether with or without fault of the lessee, lessee agrees to pay to the company the full value of such part in cash, except that if not damaged beyond reasonable repair, the lessee shall pay an amount equal to the reasonable cost of repairing the same.’
“6. The said property of claimant has never been returned to claimant.
“7. On the basis of testimony adduced at the hearing of David Hunter, Manager of O’Leary’s Contractors Equipment and Supply, Inc., and of Insurance Adjuster, William Marth, I. S. Frigon and Company, the value of the property is stipulated as follows:
1 Jaeger Compressor ........................... $2,000.00
1 Ingersoll Rand Pavement Breaker .............. 275.00
2 50 ft. lengths of %” air hose, @ $17.00 each, less
depreciation, $14.00 .......................... 20.00
2 1%" Moil Points @ $3.19 each, less depreciation of $3.00 ...................................... 3.38
TOTAL.................... $2,298.38
“8. Claimant, Interstate Fire and Casualty Company, paid O’Leary’s Contractors Equipment and Supply, Inc., $2,248.38, and thereby became subrogated to any recovery, which claimant, O’Leary’s Contractors Equipment and Supply, Inc., would recover, up to said sum.
“9. There is now due and owing to claimant, O’Leary’s Contractors Equipment and Supply, Inc., the sum of $50.00 and to Interstate Fire and Casualty Company, as Subrogree, the sum of $2248.38. Claimant, O’Leary’s Contractors Equipment and Supply, Inc., and Interstate Fire and Casualty Company, by their attorneys, Clausen, Hirsh, Miller and Gorman, again represent that no assignment or transfer of the claim in this cause, or of any part thereof, or interest therein, except as stated herein, has been made by either of the claimants, and that O’Leary’s Contractors Equipment and Supply, Inc., is justly entitled to the sum of $50.00, and Interstate Fire and Casualty Company is entitled to the sum of $2,248.38 from the State of Illinois.”

Based upon the stipulation, an award is hereby made to O’Leary’s Contractors Equipment and Supply, Inc., in the amount of $50.00, and to Interstate Fire and Casualty Company, in the amount of $2,248.38.


text:
    (No. 5227
    Gerald W. Hall, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Gerald W. Hall, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

A claim in the amount of $120.00 for twelve grave markers, which were purchased by respondent, was filed on May 6, 1965. Attached to the complaint is the certificate of claimant to the Illinois Veterans’ Commission, War Veterans’ Graves Registration Division, certifying that twelve free government headstones had been erected.

A joint motion has been filed submitting this matter on stipulation, which in substance is as follows:

(1) The report of the Illinois Veterans’ Commission to the Illinois Attorney General, dated May 19, 1965, (a copy of which is attached hereto, marked Exhibit A, and by this reference incorporated herein and made a part hereof) shall be admitted into evidence in this proceeding without objection by either party.
(2) That claimant’s claim totaling $120.00 is justly due and owing to claimant by respondent.

Based upon the stipulation and the Departmental Report filed herein, an award is hereby made to claimant in the amount of $120.00.


text:
    (No. 5229
    H. L. Allison, d/b/a Beal Supply Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Briggle and Thomas, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

This action was instituted by claimant, H. L. Allison, d/b/a Beal Supply Company, of Springfield, Illinois, for refund of $695.64 for Retailers Occupation Tax, which was assessed and paid by claimant on sales of commodities and supplies furnished to the Department of Public Safety, Illinois State Penitentiary, Menard, Illinois. Subsequently a stipulation was entered into by and between the attorneys for claimant and the Attorney General of the State of Illinois, representing respondent.

The stipulation sets forth the Departmental Report, which is in the following words and figures, viz:

“Memo to: Hon. James A. Ronan Director of Finance
“Subject: Reg. No. 612-621
H. L. Allison d/b/a Beal Supply Co.
409 % E. Capitol Ave.
Springfield, Illinois
“In answer to your memorandum directed to Mr. Leo Nickelson, Supervising Tax Auditor, District No. 7, Springfield, Illinois outlined herein are the facts as indicated after an examination of the audit papers by Mr. Richard Mentel, District Administrator, Mr. Leo Nickelson, District Supervising Tax Auditor, and myself.
“The audit examination on this account was concluded by the Department’s Auditor, Mr. Victor Wilkinson, on December 5, 1963. A tax deficiency of $732.79 was found at that time, and payment of the amended return was made by two (2) checks, one in the amount of $695.64, check No. 4618, dated December 5, 1963, and indicated in your file as exhibit No. 28.
“The audit papers indicate the following:
1. Total Amount of Taxable Sales .............. $17,664.73
Tax Paid R.O.T........................ 644.47
Tax Paid M.T.......................... 88.32
Total Tax Paid............... $ 732.79
2. Sales to Menard Penitentiary claimed as SB 503 by Beal, and disallowed in the audit for period 8/1/61 thru 1/31/63.
Total Sales and reconciled by exhibits Nos. 1 thru 27
Total Sales ............................ $16,426.36
Tax Paid on this Amount R.O.T......... 574.92
Tax Paid on this Amount M.T........... 82.13
Total Tax Paid
$ 657.05
Exhibits as follows:
Exhibit Nos. Invoice Date Amount
1 and 13 8/61 $ 655.00
2 and 14 12/61 1,482.00
3, 15, 16, and 17 2/62 $1,335.35)
$ 380.75 ) 2,553.75
$ 837.65)
4 and 18 2/62 $ 325.00
5 and 19 3/62 761.50
6 and 20 4/62 941.61
7 and 21 4/62 1,088.64
8 and 22 5/62 1,510.00
9 and 23 7/62 1,058.94
10 and 24 10/62 2,957.56
11, 25, and 26 10/62 1,185.00)
1/63 1,185.00) 2,370.00
12 and 27 11/62 722.36
$16,426.36
The tax rate used to compute the tax was at 3% and 3%%.
Therefore, it is our considered judgment that the total tax collected by the Department of Revenue on the items in question amounted to a total of $657.05, of which $574.92 was R.O.T. and $82.13 was Municipal Tax.
Attached is the file forwarded to Mr. Nickelson, and if the Department can be of any further service, please so advise.
/s/ CJF
Claude J. Flynn Chief of Field Operations"

The stipulation further provided that claimant was entitled to, and the State of Illinois should refund, the said sum of $657.05.

In view of the stipulation of the parties hereto, supported by the Report of the Department of Revenue, an award is entered in favor of claimant in the sum of $657.05.


text:
    (No. 5239
    Havana Post No. 138, The American Legion, A Not-For-Profit Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

      Havana Post No. 138, The American Legion, A Not-For-Profit Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

A claim in the amount of $370.00 for 37 grave markers, which were purchased by respondent, was filed on June 30, 1965. A joint motion has been filed submitting this matter on stipulation, which in substance is as follows:

(1) The report of the Illinois Veterans’ Commission to the Illinois Attorney General, dated July 14, 1965, (a copy of which is attached hereto, marked Exhibit A, and by this reference incorporated herein and made a part hereof) shall be admitted into evidence in this proceeding without objection by either party.
(2) That claimant’s claim totaling $370.00 is justly due and owing to claimant by respondent.

Based upon the stipulation and the Departmental Report filed herein, an award is hereby made to claimant in the amount of $370.00.


text:
    (No. 5242
    Cities Service Oil Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Kralik and Jordan, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Dove, J.

A claim in the amount of $1,100.76 for materials, which were purchased by respondent, was filed on August 10, 1965. Attached to the complaint are various purchase orders given to claimant by the Department of Public Works and Buildings, Division of Highways, from the Stockton State Garage, the Dixon State Garage, and the Appellate Court for the Second District located at Ottawa, Illinois.

A joint motion between claimant and respondent, by their respective attorneys, was entered into to the effect that this cause be submitted on the complaint, the Departmental Report of the Division of Highways, and the Report received from the Chief Clerk of the Appellate Court in Ottawa. There is no dispute of law or facts, and the Reports above referred to state that the matters alleged in the complaint are true and correct. Claimant and respondent have entered into a stipulation to the effect that claimant is justly entitled to the sum of $1,100.76 from respondent. The filing of briefs and abstracts under these conditions would serve no useful purpose.

This is a case where the reason for non-payment was that the appropriation had lapsed before the bills were presented. There is no question but what the merchandise was delivered, and was satisfactory.

It is, therefore, the order of this Court that an award be made to claimant, Cities Service Oil Company, A Corporation, in the amount of $1,100.76.


text:
    (No. 5256
    Gravely-Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1966.

    Gravely-Illinois Company, Claimant, pro se.

    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

A claim in the amount of $197.00 for material, which was purchased by respondent for the Department of Public Safety, was filed on November 26, 1965. Attached to the complaint is a purchase order given to claimant by the Department of Public Safety for three rotary lawn mowers, less trade-in of one Eclipse Parkhound mower. The new mowers were delivered to State Police Headquarters at Maryville, Cairo, and Metamora, Illinois.

A joint motion by the claimant and respondent was entered into requesting that this cause be submitted on the complaint and Departmental Report. The Departmental Report, above referred to, provides in part as follows:

“The claim for payment against the State of Illinois in the sum of $197.00 appears to be in order, inasmuch as said claim represents the agreed purchase price of three lawn mowers ordered under Purchase Order No. 664474, dated April 21, 1965.
The lawn mowers were received during May, 1965, but an Invoice Voucher was not received by this Division covering the agreed price prior to the lapse of the appropriations for the 73rd biennium.”

Subsequently claimant and respondent entered into a stipulation that claimant is entitled to the sum of $197.00 from respondent, and that the filing of briefs and abstracts under these conditions would serve no useful purpose. From the Departmental Report it appears that the reason for non-payment was that the appropriation had lapsed before the statement for materials furnished was presented. There is no question but that the merchandise was delivered, and was satisfactory.

It is, therefore, ordered by this Court that an award be made to claimant, Gravely-Illinois Company, in the amount of $197.00.


text:
    (No. 5057
    Mavis J. Welch, Administratrix of the Estate of Robert Reed Welch, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1966.

    Brunsman and Giffin, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Mavis J. Welch, Administratrix of the Estate of Robert R. Welch, seeks recovery of $25,000.00 in damages arising out of the death of Robert R. Welch on October 13, 1961.

On that date, Robert Welch was operating a truck, consisting of a tractor and a trailer, in a westerly direction on Route No. 144 about two miles west of Murphysboro, Jackson County, Illinois. Claimant alleges that respondent “negligently and carelessly” permitted Route No. 144 to become dangerous and hazardous to the public by allowing a hole, which was seven feet wide and three feet deep, to remain on the shoulder of the road. Claimant further alleges that, as a direct and proximate result of respondent’s negligence, Robert Welch was caused to violently collide with the hole in the shoulder, and, as a proximate result of such collision, he died.

Route No. 144 consisted of two lanes, and, according to the Report of the Division of Highways, was built of cement, eighteen feet wide with a shoulder eight feet wide, and a guard fence six feet from the edge of the pavement. The general location of the accident was about 100 feet east of the Indian Creek Bridge. The highway alignment is a straight line for more than 1,000 feet both east and west of the site of the accident.

Mr. Elvie Benefield testified that he and Mr. Welch had been employed by Gordon Transport Company for many years as drivers and that Benefield usually drove his truck behind the one operated by Welch. Benefield observed that on the morning of the accident Welch was in good health, and testified that the trucks had been inspected before the trip, and were found to be in good condition. Both Welch and Benefield made three round trips per week between Centralia, Illinois and Memphis, Tennessee.

Immediately prior to the accident, Benefield was driving a few minutes behind Welch. As they approached Murphysboro, there was a light sprinkle of rain, which stopped, but the pavement was wet. Welch was driving at about 45 miles per hour. As Benefield came over the hill located before the point of the accident, he saw two or three people standing in the middle of the highway. He than saw the Gordon Transport sign in the ravine on the right side of the road. The truck containing Welch was 35 to 40 feet down in the ravine. Benefield saw tire tracks on the road, which led into a hole in the shoulder. Benefield climbed into the hole, and estimated it was about four feet deep and three feet wide, and contained grass and leaves. The tracks showed that, after the truck hit the hole, it went into the guard rail, and from there into the ravine. Benefield was able to see the tracks leading from the pavement to the truck driven by Welch. He examined the tracks about 150 feet back, and none were over the center line.

According to Benefield, the tracks first left the road about 100 feet back from where they ran into the hole, and gradually pulled off the road until they hit the hole, although the wheel on the left hand side did not go off the pavement until the truck turned over, which appeared to be at the point where it hit the hole.

On the opposite side of the road about 150 feet from the truck, there were tire marks of a car and a dented guard rail, which indicated that a car had hit the guard rail and bounced away. There was a gap where the vehicles left the road, which indicated that they did not come in contact with each other, nor did they pass each other.

Berdel Hasemeyer, the State Highway patrolman called to the scene of the accident on the day in question, confirmed Mr. Benefield’s testimony. He saw the Gordon tractor-trailer in the embankment on the north side of the road, and determined that there had been no contact between the car, which was parked on the south shoulder, and the truck, which was driven by Welch. He saw tire marks from the truck on the wet pavement, but no skid marks. The tire marks were very clear. Going down the hill the tracks were never any closer than six inches from the center line. They were not on the wrong side. Towards the bottom of the hill, according to Trooper Hasemeyer, the tracks veered slightly towards the shoulder, then to the guard rails, and on into the hole and down to where it stopped. The hole in question was on the shoulder about two and one half feet from the edge of the concrete. It contained weeds and leaves and did not appear to have been a fresh hole. Hasemeyer said he measured the tracks where the truck began to leave the road about 122 feet from the hole. The measurements of the hole were seven feet, six inches wide and three feet deep. The shoulder was generally rough at a normal speed. The tire marks of the truck looked like the driver was attempting to pull back onto the pavement. The tracks indicated that the left drive wheel was on the edge of the pavement, and the other track was on the shoulder. Trooper Hasemeyer explained that Welch’s tracks were visible because he was braking, thus squeezing the moisture out of the tires, and there was no question but that the tracks were made by the Welch truck. In Trooper Hasemeyer’s opinion, from an observation of the tracks, the truck lost its balance from striking the hole. Hasemeyer further testified that he knew the deceased, and, having observed his driving, thought he was one of the “very safest of drivers.”

State Trooper William Maurizio testified that he accompanied Trooper Hasemeyer in investigating the accident. From his observation, the hole in question had been there quite a while. He also saw the line of tire tracks, and had no doubt but that they were made by the Welch truck. He stated: “We followed the line of tracks right down to the hole, and to the truck.” The marks from the Welch truck led off gradually on the shoulder, and there was no sharp turn in the tracks at any point. The tracks were six to eight inches from the center line when they were on the pavement. According to Trooper Maurizio, the railing on the other side of the road had been hit and scraped to the west, or ahead of where the truck was going. There were no tire marks on that side of the road except at the damaged guard rail.

Dallas Hawk, section man for the area for the State of Illinois, testified that his duties consisted of fixing the road, including holes in the shoulder. He had been over the portion of Route No. 144 in question the morning of the accident looking for anything that might hinder traffic, but found nothing unusual. He had never seen the hole-, but stated there was a possibility that the weeds, leaves and honeysuckle had filled up the hole, and that it was not easily distinguishable. The shoulder had not been mowed since August, according to Hawk.

Irving Lee Ferringer, the second man on the maintenance truck with Mr. Hawk, did not see the hole when he had driven by that morning.

The maintenance men testified that the road washes badly at that point, and the area had been flooded in May.

Charles Gillooley testified that he was a witness to the accident. He was driving east on Route No. 144 at about 8:30 or 9:00 A.M. He estimated his speed at about 50 miles per hour. It was drizzling. Another car passed him, as he was proceeding east. He subsequently learned that this car was driven by Frankie Edwards. He saw the Edwards car go into a skid. The driver temporarily lost control of his car, went over the shoulder on his side, and ran into the guard rail. Finally getting the car under control, he got back onto the highway. Edwards had already passed Gillooley when he went into the skid, according to Gillooley. Gillooley saw a Gordon Transport truck coming from the other direction shortly after the Edwards car skidded. He noticed the truck because the lights were flashing on it. The Edwards car was about 100 feet ahead of him at the time he saw the truck, and had come back onto the pavement. The truck and the car did not come together, but the truck hit the shoulder, and took off the fence. As far as he could see, the truck seemed to lose control, hit the shoulder, and appeared to go off suddenly. The witness was about 100 feet from the westbound truck when it left the road. He estimated that Edwards was going about 60 miles per hour when he went into a skid on the wet pavement, and thought the skid stopped at about the center line. Gillooley thought the truck driver could have seen the Edwards car as the truck came down the hill, since his headlights flashed.

Frankie Edwards testified he was driving east on Route No. 144, and had passed a car, “After I got past and back on my side of the road this truck was coming down the road towards me. He blinked his headlights twice, and appeared to be over the black line.” Edwards testified that he put on his brakes, pulled over to the shoulder, crashed into the guard rail, and then pulled back onto the pavement on his own side. He did not see the truck go off the road. He estimated his speed to have been 40 or 45 as he passed the Gillooley car. It was hazy, and had been raining, or had just stopped. The pavement was wet. Edwards stated that he did not start skidding until he was back on his side of the road, and then he applied his brakes, and skidded into the guard rail. The truck was blinking his headlights, and appeared to be riding on the center line.

Claimants may not recover unless they prove by a preponderance of the evidence that (1) Robert Welch was free from contributory negligence; (2) that respondent was negligent; and, (3) the negligence of respondent was the proximate cause of the accident.

Three witnesses, including the two State Troopers who were at the scene of the accident immediately after it occurred, testified that they could clearly see the tracks of Welch’s truck going along the highway, and then gradually easing off onto the shoulder and right into the hole, and thence down to the point where the truck was located in the ravine. They explained the tracks were visible because of Welch’s action in pumping his brake. They all testified that the tracks were never closer than six inches to the center line. Both Benefield and Trooper Hasemeyer testified that Welch was an extremely safe driver.

Witnesses Edwards and Gillooley both testified that the Edwards car passed the Gillooley car on a two lane highway coming towards Welch’s truck. Edwards passed the Gillooley car, and then put on his brakes. He skidded onto the shoulder, and crashed into the guard rail before passing the Welch truck, which had by then gone off onto the shoulder. It was a hazy day, and Gillooley thought that the truck went off suddenly. Edwards testified that it “appeared” to be over the center line. However, the clearly visible tracks showed that the truck was not over the center line, and had, in fact, gone off the road gradually.

It is not unreasonable for a driver to pull over to the shoulder of the road after seeing a car in his own lane coming towards him, which apparently is what happened when Welch saw the Edwards car pass the Gillooley car. This is indicated by the fact that Welch blinked his headlights in warning, as he came over the hill.

That the hole caused the truck to go into the ravine, killing Welch is shown by the fact that the tracks ran gradually into the hole, and then abruptly veered over the guard rail. The witnesses testified that the hole appeared to have been there a long time, as shown by the vegetation growing in it. The State’s maintenance men testified that the last mowing had been in August, two months before the accident, and that the area washes badly from floods. Therefore, the State should have known of the defective condition of the shoulder by the exercise of reasonable care, which would encompass frequent mowing of the vegetation at a spot, which is likely to develop holes and defects. It would seem that the dangerous holes on the shoulders are not those, which can be readily seen from driving along the road, but are those which are hidden by vegetation.

“Highway” is defined as any public way for vehicular traffic, which has been laid out pursuant to State law (Ill. Rev. Stats., Chap. 121, Sec. 2-202), and includes “appurtenances necessary or convenient for vehicular traffic.” Since a road shoulder is both necessary and convenient for vehicular traffic, it follows that reasonable care by the State of such shoulder is required.

In the instant case, the shoulder was being used for an intended purpose — that of avoiding an apparent accident due to the Edwards car being on the wrong side of the highway in passing Gillooley and skidding out of control.

The law of the United States, in absence of specific state statutory provisions, requires travelers in vehicles each to turn to the right, if reasonably practical, when they meet each other upon a highway. (25 Am. Jur. 2d, Highways, Sec. 206.)

Therefore, there was no contributory negligence on the part of Robert Welch in gradually pulling off to the right, and leaving the pavement in order to pull onto the shoulder. There was negligence on the part of the State in not maintaining the shoulder in a safe condition for the use to which it was devoted.

We do not by this opinion purpose to expand the degree of responsibility imposed upon the State in the maintenance of a shoulder. This Court has long held that respondent is not bound to maintain a shoulder in the same condition as the paved surface of the highway. (Sommer, Et Al, vs. State of Illinois, 21 C.C.R. 259; Howell vs. State of Illinois, 23 C.C.R. 141; Lee vs. State of Illinois, No. 5076.)

For example, a shoulder, which is a few inches lower than the pavement, does not amount to negligence per se. This Court further held in the above cited cases that the State has no duty to maintain the shoulder in such a manner as would insure the safety of vehicles, which turn onto the shoulder, and then attempt to return to the pavement without slackening speed.

Mr. Welch’s death left his widow and five minor children without support. His income for 1960 was $9,071.89, and for 1961 was $7,149.98. His life expectancy was 23.1 years.

Therefore, claimant is awarded the sum of $25,000.00.


text:
    (No. 5259
    St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1966.

    Downing, Smith, Jorgensen and Uhl, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, Claimant, presented its statement to the Department of Public Aid for hospitalization services rendered one Letha Roney for the period from April 25, 1965 to June 11, 1965.

The Department of Public Aid had determined that the recipient was eligible to receive aid under its program of Assistance to the Medically Indigent Aged, but the Department denied the instant claim on October 29, 1965 on the basis that it was for services rendered prior to July 1, 1965, and that the appropriation for that biennium had lapsed. Thereafter, on December 9, 1965, a complaint in this matter was filed in the Court of Claims. It contains a request for payment of the sum of $2,505.75, representing charges for the hospital services furnished said Letha Roney during the above mentioned period of time.

A Departmental Report was filed in this matter, and received in the Attorney General’s office on January 14, 1966, which stated: “We admit claimant is justly entitled to the amount claimed.” Thereafter a written stipulation was entered into between claimant and respondent by their respective attorneys, which found that claimant furnished services to the said Letha Roney; that the reasonable and equitable charges for the services so provided by claimant amounted to the sum of $2,505.75; and, that claimant was entitled to be reimbursed in that amount.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contract was entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an order for the amount due. Memorial Hospital of Du Page County, a Corporation, vs. State of Illinois, Case No. 5196, opinion filed January 29, 1965. It appears that all qualifications for an award have been met in the instant case.

Claimant is hereby awarded the sum of $2,505.75.


text:
    (No. 5260
    St. Mary's Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1966.

    Downing, Smith, Jorgensen and Uhl, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, claimant, presented its statement to the Department of Public Aid for hospitalization services rendered one Naomi F. Phelps for the period from May 26, 1965 to May 30, 1965. The Department of Public Aid had determined that the recipient was eligible to receive aid under its program of Assistance to the Medically Indigent Aged, but the Department denied the instant claim on November 17, 1965 on the basis that it was for services rendered prior to July 1, 1965, and that the appropriation for that biennium had lapsed. Thereafter, on December 9, 1965, a complaint in this matter was filed in the Court of Claims. It contains a request for payment of the sum of $118.34, representing charges for the hospital services furnished said Naomi F. Phelps during the above mentioned period of time.

A Departmental Report was filed in this matter, and received in the Attorney General’s office on January 14, 1966, which stated: “We admit claimant is justly entitled to the amount claimed.” Thereafter a written stipulation was entered into between claimant and respondent by their respective attorneys, which found that claimant furnished services to the said Naomi F. Phelps; that the reasonable and equitable charges for the services so provided by claimant amounted to the sum of $118.34; and, that claimant was entitled to be reimbursed in that amount.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contract was entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an order for the amount due. Memorial Hos pital of Du Page County, a Corporation, vs. State of Illinois. It appears that all qualifications for an award have been met in the instant case.

Claimant is hereby awarded the sum of $118.34.


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    (No. 5261
    St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1966.

    Downing, Smith, Jorgensen and Uhl, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, claimant, presented its statement to the Department of Public Aid for hospitalization services rendered one Myrtle Strickier for the period from June 6, 1965 to June 15, 1965. The Department of Public Aid had determined that the recipient was eligible to receive aid under its program of Assistance to the Medically Indigent Aged, but the Department denied the instant claim on November 18, 1965 on the basis that it was for services rendered prior to July 1, 1965, and that the appropriation for that biennium had lapsed. Thereafter, and on December 9, 1965, a complaint in this matter was filed in the Court of Claims. It contains a request for payment of the sum of $318.20, representing charges for the hospital services furnished said Myrtle Stickler during the above mentioned period of time.

A Departmental Report was filed in this matter, and received in the Attorney General’s office on January 14, 1966, which stated: “We admit claimant is justly entitled to the amount claimed.” Thereafter a written stipulation was entered into between claimant and respondent by their respective attorneys, which found that claimant furnished services to the said Myrtle Stickler; that the reasonable and equitable charges for the services so provided by claimant amounted to the sum of $318.20; and, that claimant was entitled to be reimbursed in that amount.

This Corut has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contract was entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an order for the amount due. Memorial Hospital of Du Page County, a Corporation, vs. State of Illinois. It appears that all qualifications for an award have been met in the instant case.

Claimant is hereby awarded the sum of $318.20.


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    (No. 5262
    St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion fled February 24, 1966.

    Downing, Smith, Jorgensen and Uhl, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, claimant, presented its statement to the Department of Public Aid for hospitalization services rendered one Flossie Barbetti for the period from February 11, 1965 to February 27, 1965. The Department of Public Aid had determined that the recipient was eligible to receive aid under its program of Assistance to the Medically Indigent Aged, but the Department denied the instant claim on November 18, 1965 on the basis that the claim was for services rendered prior to July 1,1965, and that the appropriation for that biennium had lapsed. Thereafter, on December 9, 1965, a complaint in this matter was filed in the Court of Claims. It contains a request for payment of the sum of $612.00, representing charges for the hospital services furnished said Flossie Barbetti during the above mentioned period of time.

A Departmental Report was filed in this matter, and received in the Attorney General’s office on January 14, 1966, which stated: “We admit claimant is justly entitled to the amount claimed.” Thereafter a written stipulation was entered into between claimant and respondent by their respective attorneys, which found that claimant furnished services to the said Flossie Barbetti; that the reasonable and equitable charges for the services so provided by claimant amounted to the sum of $612.00; and, that claimant was entitled to be reimbursed in that amount.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contract was entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an order for the amount due. Memorial Hospital of Du Page County, a Corporation, vs. State of Illinois. It appears that all qualifications for an award have been met in the instant case.

Claimant is hereby awarded the sum of $612.00.


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

      Opinion filed April 7, 1966.

    Gosnell and Benecki and John W. Preihs, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

On February 2, 1966, claimant filed her petition for reimbursement for monies expended for nursing care and help, medical services and expenses from February 1, 1964 to January 1, 1966. Claimant seeks reimbursement in the sum of $6,581.64.

Claimant was injured on February 2, 1936 in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the original case of Penwell vs. State of Illinois, 11 C.C.R. 365, in which an initial award was made, and at which time jurisdiction was retained to make successive awards in the future.

Claimant has attached to her petition as Exhibit No. 1 a bill of particulars, which discloses the amounts expended from February 1, 1964 to January 1, 1966 to be as follows:

1. Nursing and practical help .................. $ 1,853.95
2. Room and board for nurses and practical help.... $ 1,223.25
3. Drugs and supplies ........................ $ 934.61
4. Physicians, hospital, and professional services .... $ 2,569.83
Total Expenses to January 1, 1966 ...................... $ 6,581.64

A joint motion of claimant and respondent was filed herein on February 15, 1966, asking the Court for leave to waive the filing of briefs and arguments therein. On February 21, 1966, an order was entered granting the prayer of said motion.

Claimant’s petition clearly alleges that there has been no improvement in her physical condition since the last award, and that her condition requires constant care by physicians and practical nurses. Exhibit No. 2 attached to said petition contains receipts and vouchers for the monies detailed as having been spent in Exhibit No. 1. From an examination of the petition and the exhibits, as well as the file in this cause, the Court is of the opinion that the expenditure of such sums of money was necessary for the care of claimant.

An award is, therefore, made to claimant in the amount of $6,581.64 for the period of time from February 1, 1964 to January 1, 1966.

This Court reserves jurisdiction of this matter for further determination of claimant’s need for additional care.


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    (No. 4913

    Roland Munroe, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 7, 1966.

    Morris J. Wexler, Attorney for Claimant.
    William G. Clark, Attorney General; Daniel N. Kadjan, Assistant Attorney General, for Respondent.
   Pezman, J.

The issues that surround this claim commenced on the 29th day of August, 1936 when claimant, a 15 year old Chicago newspaper boy, called at the apartment of Agnes Roffies, a woman of the age of 66 years, in order to collect from her the weekly payment for the delivery of a newspaper. Claimant was invited into the home of Agnes Roffies to rest and have a soft drink. The evidence discloses that, at the request of Mrs. Roffies, claimant straightened a key to one of her doors, and, in so doing, made use of a hammer, which later was introduced in evidence as the weapon, which caused her death.

From the transcript of evidence oh file, we find that claimant, while in said apartment and performing said task, noticed Mrs. Roffies placing a box on the dining room table, which contained certain trinkets, jewelry, buttons, and various articles of gold or gold plate. There was some discussion between the parties as to the sale of these items. During such discussion and while Mrs. Roffies was walking around her apartment, she stumbled and fell. Claimant struck her on the head with the hammer, which he still had in Ms possession, and when the hammer broke claimant seized Mrs. Roffies’s cane, and struck her with it. He seized the various items of jewelry and trinkets, fled from the apartment, and attempted to remove stains of blood from his clotMng and various other items, and proceeded to dispose of the jewelry. WMle the attack was in process, three passers-by on the darkened street heard Mrs. Roffies scream, and observed claimant in the act of stoking her. Later he was arrested at Ms home. Shortly thereafter he admitted to the killing, and signed a confession thereto.

Roland Munroe, Jr., claimant herein, was indicted by the Grand Jury of Cook County on September 1, 1936 for the murder of Agnes Roffies. Claimant was arraigned in the Criminal Court of Cook County on September 7, 1936, and entered a plea of not guilty. A jury trial was held, and, on October 21, 1936, the defendant-claimant was found guilty of the crime of murder. He was then sentenced to the Illinois State Penitentiary for a term of 199 years. The first two months of Ms incarceration were spent in the diagnostic depot at the Joliet State Penitentiary. He was then transferred to the Psychiatric Division of the Illinois State Penitentiary at Menard. On July 9, 1945, he was transferred from the PsycMatric Division of the Menard branch to the General Division of the Pemtentiary at Menard.

Claimant petitioned the Criminal Court of Cook County for a transcript of the proceedings of his trial and the common law record. On January 26, 1956, the petition for the common law record was granted, but it was denied as to the transcript of the proceedings of the trial. Prentice H. Marshall was appointed as claimant’s attorney on November 13, 1956 by the Illinois Supreme Court. On January 18, 1957, the Criminal Court of Cook County granted the petition of claimant that he be furnished with the transcript of the proceedings of his trial (pursuant to Rule 65-1 of the Supreme Court of Illinois). In January of 1958, the transcript of the proceedings was filed with the Illinois Supreme Court, and, in May of 1958 the Supreme Court issued a Writ of Error. On November 26, 1958, the Supreme Court reversed the finding of guilty of claimant, and remanded the case to the Criminal Court of Cook County for a new trial. On December 31, 1958, Roland Munroe, Jr., was re-arraigned in the Criminal Court of Cook County, and entered a plea of not guilty. On May 26, 1959, a bench trial before Judge Grover C. Niemeyer of the Criminal Court, found Roland Munroe, Jr., not guilty of the crime of murder, and discharged him for the reason that at the time of the commission of the act Claimant was insane, but at the time of his second trial he was sane, and, therefore, should be discharged.

On May 23, 1963, claimant, Roland Munroe, Jr., filed his cause of action in the Court of Claims against the State of Illinois based upon the theory that claimant was and is innocent of the murder of Agnes Roffies, and was unjustly imprisoned in the State of Illinois for a period in excess of 22 years. It is further contended that by reason of the unjust imprisonment claimant was damaged in the amount of $35,000.00. The complaint contains a prayer for judgment against respondent in the sum of $35,000.00, together with attorney’s fees not to exceed 25% of the judgment granted and the cost of the suit.

Claimant contends that, by reason of his mental condition at the time of the consummation of the act, he could not determine right from wrong, or that, if he did retain such an ability, he could not restrain himself from so acting. Claimant’s position is based upon the point that at the original trial, due to his mental condition, he should have been found innocent by reason of insanity, and, therefore, his incarceration was unjust. Claimant further contends that the decision at the second trial by the Criminal Court of Cook County, which found claimant, Roland Munroe, Jr., to be innocent, is free from the collateral attack of the State of Illinois in this cause. The claim is based upon the fact that claimant was insane at the time he committed the act for which he was imprisoned, and, therefore, was innocent of the crime for which he was imprisoned.

Respondent bases its primary defense on Par. 3 of Sec. 8 of the Court of Claims Act. This Act clearly sets forth that the Court of Claims has jurisdiction in such matters only if claimant proves his innocence of the crime for which he was imprisoned, and further proves that he has a claim against the State for time unjustly served in prison. It is contended by the State that a finding of claimant’s innocence, based upon insanity, by the Criminal Court of Cook County is proof neither of the fact that claimant is or was innocent, nor of the fact that the years he spent in prison were unjustly spent. It is the position of respondent herein that, by reason of the confession signed by claimant, the act for which claimant was incarcerated was admitted, and that on further evidence and testimony of claimant at the latter trial such act was not denied.

It seems that the primary issues for the Court to determine herein are whether claimant has proved all the material allegations of his claims, i.e., that the time served in prison was unjust; that he was innocent of the crime for which he was imprisoned; and the amount of damages to which he is entitled. (See Jack Flint vs. State of Illinois, 21 C.C.R. 80, Pitt vs. State of Illinois, 22 C.C.R. 258, People ex rel Rusch vs. Fusco, et al, 397 Ill. 468.) It is quite helpful in determining these issues to carefully analyze the intention of the legislature in passing the legislation, which is the basis of this claim. It is abundantly important that claimant herein prove not only his innocence, but also prove that his particular set of facts places himself within the realm of the relief granted by the statute.

The evidence clearly indicates the mental illness of claimant at the time of the original act in question. At the time of the original act, the science of mental and psychiatric treatment had only commenced to emerge into that which is now available in this field. Evidence shows that defendant was in need of psychiatric help and institutional care, and such advice was given to claimant’s stepmother prior to the act, which is the basis of the criminal matter. The advice in itself should have immediately required some type of action on the part of the parents or the related community social authorities. Testimony of the doctors at the time of incarceration indicated that claimant was of such a mental condition that he required institutionalized care, extensive rehabilitation, and psychiatric care. Claimant contends that because of these conditions the original finding of guilty was unjust; that the subsequent finding of not guilty by the Cook County Criminal Court is decisive; that such finding of innocence cannot be collaterally attacked, since claimant was found innocent of this act; and, that any confinement or incarceration was unjust. The findings of the Criminal Court of Cook County in the criminal trial cannot be attacked collaterally by the State, and their findings can only be challenged or attacked if some fraud or lack of jurisdiction has been raised. (See Bell vs. Senneff, 83 Ill. 122.)

There is little doubt that the mental condition of claimant was such at the time of the act itself that the mind and the body could not be held responsible, and a decision of innocence by reason of insanity was justified. The finding of innocence by reason of insanity needs questioning to see if it meets the test established by Jonnia Dirkans vs. State of Illinois, Case No. 4904, opinion filed February 25, 1965.

“The law in Illinois is clear that claimant must prove his innocence in order to be entitled to an award by the Court of Claims. The burden is upon claimant to prove by a preponderance of the evidence (1) that the time served in prison was unjust; (2) that the act for which he was wrongfully imprisoned was not committed by him (emphasis supplied); and (3) the amount of damages to which he is entitled.”

There is no doubt from the evidence and the confession introduced that the act of striking the deceased by claimant did occur.

This Court in the Dirkans case held that a claimant must prove his innocence of the “fact” of the crime. It is the belief of this Court that the legislature intended only to provide a manner of recourse in the Court of Claims, with the amount of recovery specified, for those who were imprisoned for an act, which they did not commit. The legislature did not intend to establish a means of recourse for an individual who in “fact” had committed a criminal act, but an act for which one could not be held “criminally” responsible due to a mental condition. Based upon the evidence and the facts herein, the Court must find that the act for which claimant was wrongfully imprisoned was in fact committed by him, and that he was not innocent of the crime, as such “innocence” is interpreted by this Court.

Claim is hereby denied.


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    (No. 4928
    Vera Seaton and Lenar Seaton, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 7, 1966.

    Arthur S. Gomberg, Attorney for Claimants.
    William G. Clark, Attorney General; Sheldon K. Rachman, Special Assistant Attorney General, for Respondent.
   Perlin, C. J.

On motion for a summary judgment, the State of Illinois, respondent, has moved that the claim of Vera and Lenar Seaton, claimants in this action, be dismissed because the notice of claim for personal injuries is fatally defective.

The record reveals the following:

Claimant, Vera Seaton, alleges that she was injured when a car, which was driven by Lenar Seaton, ran into a hole in the pavement of Illinois State Highway Route No. 45 on August 3, 1959.

Section 22-1 of the Court of Claims Law requires that any person who is about to commence any action in the Court of Claims against the State of Illinois for damages on account of injury to his person shall file notice within six months from the date the injury was received, giving, among other requirements, “the place or location where the accident occurred.”

The notice of claim filed by claimant contains the following statement:

“5. Location or place where the accident occurred:
On Illinois State Highway Route No. 45, approximately between two or three blocks north of Route No. 83, at the hole or defect of the road on the northbound portion thereof, at or near Palos’ Park, Illinois.”

The complaint, which was filed on August 8, 1960, also contains the description of the hole as being “on Route No. 45, approximately two or three blocks north of Route No. 83, at or near Palos Park, Illinois.”

In support of its motion for a summary judgment, respondent states that a stipulation of fact was entered into covering the hearing in this matter, which was held on April 8, 1964, wherein four witnesses on behalf of claimants testified that the location of the alleged defective roadway condition was on Route No. 45, between a minimum of two and a maximum of three miles, all north of Route No. 83.

Respondent, therefore, contends that the notice of claim for personal injuries is fatally defective in that the location or place where the accident occurred, as set out in the notice, is at substantial variance with the evidence adduced relating to the location or place where the accident occurred, and thus the notice is legally insufficient.

That the notice in the instant case is insufficient is amply demonstrated by the following cases:

In Reichert vs. City of Chicago, 169 Ill. App. 493, the notice to the city stated that the accident happened “at and near the intersection of La Salle Street with Madison Street . . In rejecting the notice, the court stated at p. 496:

“The purpose of the notice is not only to enable the city to intelligently investigate the alleged claim, but that it may prepare its defense thereto. It is impossible to say that this notice furnished such particulars. If the accident was due to a defective lamp “at or near” the intersection of two streets, must the city be prepared, at its peril, to meet proof of an accident occurring by reason of some defective street lamp on or near any of the four corners of the street intersection in question? We do not think so.
“Can a description, which applies equally to one of four several places, accurately be said to specify the place or location of the accident?”

In its opinion, the court further cited the case of Benson vs. City of Madison, 101 Wis. 312, 77 N.W. 161, in which the Supreme Court stated:

“But to be legally sufficient, a notice must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself. . . .”

It further cited an excerpt from the case of Barribeau vs. City of Detroit, 147 Mich. 119, in which the Supreme Court used the following language:

"When parol evidence is required to determine both the place and the nature of the defect, a reasonable notice has been given to the city.”

In Swenson vs. City of Aurora, 196 Ill. App. 83, plaintiffs suit was dismissed in an action to recover damages for injuries allegedly received from stepping into a hole in a defective sidewalk. The notice in that case set forth the place of the hole as being on the “west side of said La Salle Street, between North Avenue, and Washington Street, and opposite Jennings Seminary, in the city aforesaid.” The court stated: “In the area of sidewalk covered by the description, there may have been a large number of holes.” The court further ruled that there was no reason why the plaintiff could not have stated in the notice, as was done in later testimony, that the hole was located in the sidewalk, about fifty-five feet north of the corner of North Avenue, which fixes the location with sufficient definiteness.

In Keller vs. Tomaska, Et Al, 299 Ill. App. 34, 19 N.E. 2d 442, a motorist counterclaimed against the city for an accident, which was allegedly caused by a defective street. A notice, which gave the place of the accident at a point almost a quarter of a mile from where the accident actually occurred, was fatally defective in its specification of place of accident. The notice was held insufficient, although in the same case plaintiff had, in fact, filed the proper notice of place. The court held that the right to maintain a party’s action depends on the sufficiency of his notice, and that it was immaterial what notice the defendant may have had from other sources. (Ouimette vs. City of Chicago, 148 Ill. App. 505, 508.)

There are cases, which indicate that a notice would not be deemed fatally defective if, as a matter of fact, the city or state authorities could, without further information from claimant, determine the exact place of the alleged incident. (Bryant vs. City of Chicago, 319 Ill. App. 524, 49 N.E. 2d 654; Reed vs. City of Chicago, 309 Ill. App. 129, 32 N.E. 2d 680.) However, the difference in the instant case between two and three blocks and two or three miles is so substantial as to incapacitate respondent in its ability to make any investigation, or to prepare any defense whatsoever.

Claimant contends, however, that a deposition, which was taken on October 31, 1961 by respondent, cured any defects in the notice. This allegation is without merit. The giving of notice within the six month period in accordance with statutory requirements is a condition precedent to the maintenance of a suit for personal injury against the State, and failure to meet the notice requirements must result in dismissal of any claim. That a deposition, which was taken more than two years after the accident, does not repair a defective notice is enunciated by the court in the Swenson case at p. 92, as follows:

"The object of the statute is to furnish timely notice to the city, village, or town of the fact that the party claims to have sustained an injury, and that he proposes to enforce his claim for damages against said city, village, or town by suit, and thereby enable the city, village, or town to investigate the claim while the facts are fresh, and the justice of the claim can be readily ascertained.” Donaldson vs. Village of Dieterich, 247 Ill. 526.

For the aforesaid reasons, the motion of respondent for a summary judgment is hereby allowed, and the claims of Vera Seaton and Lenar Seaton are dismissed.