text:
    (No. 4788
    Michael G. Ivancic, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

      Petition of Claimant for Rehearing denied March 24, 1961.

    Eugene M. Snarski and Lidschin and Pucin, Attorneys for Claimant.
    William L. Guild, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Michael G. Ivancic, seeks damages in an action based upon an alleged malicious prosecution by a State Trooper, Russell W. Ford, resulting from a jury finding claimant not guilty on a complaint charging him ■with disorderly conduct, which was signed by State Trooper Ford on April 29, 1957 before Justice of the Peace Emil Lindvahl in the City of Waukegan, Lake County, Illinois.

The facts appearing from the record are these:

On April 30, 1957, at about 12:20 A.M., State Police Officers Ford and Dagoes observed claimant in the drive way of Bartell’s Drive-In on Belvidere Road. His head was leaning partially ont of the window. As the State Troopers pulled into the driveway, claimant proceeded to drive off. They followed claimant’s car, and noted that it weaved across the center line on two or three occasions. On one occasion, he started to make a turn, and then turned back. The State Troopers then forced claimant’s automobile to the curb. As claimant alighted from the car, Officer Ford noticed that claimant had vomited. Claimant informed Officer Ford that he was sick, and that he had had a couple of drinks before dinner, but that it was mainly the dinner that had made him ill. He was taken to the North Chicago Police Station, as the officers did not consider him capable of driving.

The North Chicago Police Station is approximately two miles southeasterly from the point of arrest and within a block or so of claimant’s house. At the station claimant was advised to take the traffic ticket, which he was given, and go to his home. However, claimant refused to take the ticket, and wanted to be taken immediately before a judge. He was taken before Justice of the Peace Leroy Fritz of Wadsworth, Illinois. Wadsworth is approximately ten miles from the North Chicago Police Station.

Judge Fritz explained to claimant his rights. He then pleaded guilty, and paid a fine of $15.00 plus $5.00 costs.

The evidence as to what occurred before Judge Fritz and thereafter is in conflict. The evidence of respondent’s -witnesses, Judge Fritz and Trooper Ford, establish that claimant, in their presence and during the hearing before Judge Fritz, expressed himself repeatedly in vile and obscene language, including those classic four letter words of the gutter. He was informed by Judge Fritz on several occasions that the Judge’s wife and mother were in the adjoining room, and yet he persisted in a tone loud enough to be heard in the adjoining room until the Judge told him he would be held in contempt if he continued. After the hearing, at which time claimant pleaded guilty to the traffic violation, claimant and Officer Ford left the Fritz residence, and claimant reembarked on his blasphemous course while in the State Trooper’s automobile, at which time Trooper Ford informed him he was under arrest, took him to the Lake County Jail, and swore out a complaint charging claimant with disorderly conduct. Upon claimant’s failing to make bond, he was placed in jail where he remained until 10 A.M. the next morning.

Claimant on the other hand testified that he at no time used such language. He stated that, when they arrived at the home of Judge Fritz, the Trooper and the Judge spoke together, and the Judge told him the fine was $20.00. He paid the money, obtained a receipt, and he and Trooper Ford left with Trooper Ford shoving him on the shoulder and saying, ‘1 Out with you. ’ ’ He stated that Trooper Ford then gave him another shove, and told him to get back in the car. He denied using any vile or obscene language in front of Trooper Ford.

On May 2,1957, claimant was tried on the disorderly conduct charge, and found not guilty by a jury.

Claimant contends that, as a result of this disorderly conduct charge, he was embarrassed and humiliated before his friends, and that his insulin balance was upset, which resulted in injury to his person and body, inasmuch as he is a diabetic.

Both claimant and respondent agree as to the necessary elements of a malicious prosecution suit. In Brandt vs. Brandt, 286 Ill. App. 151, at page 162, the court stated: “It was necessary to prove that a proceeding was begun; that it was against plaintiff and caused by defendant ; that it terminated in favor of plaintiff; that it was begun without probable cause and with malice, and that damage resulted therefrom.” Claimant has proven that a disorderly conduct proceeding was begun, that it was against him, and caused by an agent of respondent, namely, Trooper Ford. In the disorderly conduct proceeding, claimant was found not guilty.

These elements are established, but claimant’s case must fail for the reason that it has not been established that malice and a lack of probable cause for the institution of the disorderly conduct charge existed.

The burden of proof is upon claimant to establish that Trooper Ford was actuated by malice, and had no probable cause to institute the disorderly conduct proceeding. If respondent’s evidence is taken as true, there was probable cause for the arrest and prosecution of claimant for disorderly conduct, and the subsequent finding of not guilty is not significant on that question. Likewise, if claimant’s testimony is taken as true, there would be no probable cause for the arrest and prosecution.

"We see nothing in the record to lend more credence to claimant’s version of the proceeding than to respondent’s. In fact, if Trooper Ford had been inclined toward malice against claimant, it would be more likely that such a charge would have been filed before Judge Fritz rather than before Judge Lindvahl.

We, therefore, find that claimant has failed to bear his burden of proving the elements of his case, and this claim is denied.


source: Caselaw Access Project

author: Wham, J. Tolson, C. J.

license: Public Domain

text:
    (No. 4801
    Edwin S. D. Butterfield, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

      Concurring opinion filed March 24, 1961.
    Edwin S. D. Butterfield, Claimant, pro se.
    William G. Clark, Attorney General, for Respondent.
   Wham, J.

Claimant, Edwin S. D. Butterfield, seeks to recover $6,000.00 as the alleged unpaid balance of $7,500.00 for legal services rendered to State Treasurer Warren E. Wright in defense of the cause of the People ex rel Latham Castle, Attorney General, Petitioner, vs. Warren E. Wright, State Treasurer, Respondent, No. 33925, being an original petition in mandamus filed in the Supreme Court of the State of Illinois, the decision of which is reported in 8 Ill. 2d 454.

Respondent, although filing no answer to the complaint, resists the payment of this claim on the following grounds:

1. That claimant was not. retained by Warren E. Wright as his attorney.

2. That claimant has been paid for his services.

3. That, even if retained by Warren E. Wright, the obligation for his fees is the personal obligation of Warren E. Wright and not the State of Illinois.

4. The fee claimed is not reasonable under the circumstances.

5. That, even if Warren E. Wright had authority to retain attorneys to represent him in his official capacity in said suit, his authority as Treasurer to contract for legal services was limited to the availability of unexpended funds in the State Treasurer’s appropriations, and when said funds were expended, as they were, no additional funds can be paid for said services.

Claimant testified as follows: On January 2, 1956 lie received a call from attorney Harold Halfpenny, representing Warren E. Wright, and was asked if he would be willing to represent Mr. Wright in a mandamus proceeding that the Attorney G-eneral intended to file against him. On the 3rd of January claimant met with Warren E. Wright, William J. .Kiley and Harold Halfpenny in the office of Harold Halfpenny in Chicago. There, Mr. Kiley, assistant to Mr. Wright, asked Mr. Wright “Do you want me to represent you, or do you want Mr. Halfpenny to represent you, or do you want all three of us to represent you? ”, to which Mr. Wright replied, “I would rather have all three of you. ’ ’

Claimant immediately began preparation for the defense of said suit, which, among other things, consisted of preparing a motion to dismiss the petition for an original writ of mandamus, argument and brief in support of answer,'* and petition for rehearing, upon each of which pleadings William J. Kiley and Halfpenny and Hahn are designated as attorneys for Warren E. Wright, and claimant is designated “of counsel.”

Upon denial of the petition for rehearing on April 4, 1956, claimant testified that he submitted his statement for services rendered to Warren E. Wright in the sum of $7,500.00, dated April 12,1956, and offered a copy of it in evidence as claimant’s exhibit No. 3 after service on respondent of a demand to produce the original statement. Exhibit No. 3 was admitted in evidence after counsel for respondent informed the Commissioner that the original statement could not be found. Exhibit No. 3 reads as follows:

“EDWIN S. D. BUTTERFIELD 111 West Washington Street Chicago 2, Illinois
Hon. Warren E. Wright State Treasurer State of Illinois State Capitol Bldg. Springfield, Illinois
To services rendered as counsel for State Treasurer under letter of instruction from the Attorney General of the State of Illinois refusing to represent the State Treasurer in the preparation and presentation of defense to petition for original writ of mandamus brought by the Attorney General of the State of Illinois against the State Treasurer, including conferences with State Treasurer, his attorneys and aides, the Attorney General and his aides, and special counsel. Examination of pleadings and proceedings in State Toll Road litigation and conferences with counsel thereon, examination of authorities and precedents and petition for leave to file petition for original writ, preparation of legal memoranda, motion to strike, and brief and argument, conference with Clerk of the Supreme Court, serving notices, filing motion to strike and accepting service of summons, examination of response of relator to motion to strike, examination of petition of amicus curiae, objections thereof, and rulings of court thereon, preparation of answer to petition for writ and brief and argument in support thereof, supervising printing, serving notices and filing answer and brief, examination of motion of Attorney General to strike answer, preparation of response to motion to strike answer, preparation of response to motion to strike answer and brief and argument in support thereof, serving notices, telegraphing clerk of Supreme Court, and filing with Clerk of the Supreme Court response to motion to strike answer of the Attorney General, conferences with Clerk of Supreme Court in re: filing of pleadings and order of Supreme Court on issuance of writ and limitations, delivering letter to and conference with Attorney General in re: performance of duties of Treasurer under provisions of writ, conference with Attorney General and his aides in re: form of receipt, release and bond, drafting and sending telegrams of withdrawal of offer to New York Life Ins. Co. in re: purchase of $30,000,000.00 in U. S. Treasury obligations, participation in the supervision of delivery of receipt, release and bond to Toll Highway Commission of $411,541,666.67 in cash to the State Treasurer, and including services rendered during two trips to Springfield, Illinois.....$7,500.00.”

He has received no payment on this statement, hnt did receive $1,500.00 from Halfpenny and Hahn, who had received payment in full of their statement submitted to Warren E. Wright, dated November 9, 1956, which statement was admitted in evidence as respondent’s exhibit No. 5, and reads as follows:

Warren E. Wright State Treasurer Capitol Building Springfield, Illinois
November 9, 1956
IN ACCOUNT WITH HALFPENNY AND HAHN Attorneys at Law 111 West Washington Street Chicago 2, Illinois
IN RE: People of the State of Illinois ex rel, Latham Castle, as Attorney General of the State of Illinois, vs. Warren E. Wright, as Treasurer of the State of Illinois and ex officio custodian of the funds of the Illinois State Highway Commission, No. 55925, Illinois Supreme Court.
Legal services rendered in regard to motions, answers and briefs of Warren E. Wright in the above entitled mandamus suit in the Illinois Supreme Court, conferences, checking and approving various documents for the transfer of funds to the State Treasurer ________________________________________________________________________________________$ 3,500.00
Legal services as associate counsel of Edwin S. D. Butterfield in the above entitled matter pursuant to previous invoices____________ 1,500.00
Monies advanced:
Long distance telephone calls ____________________________________$ 17.10
Travel, meals, hotel expenses, trips to Springfield______ 118.25
Court costs________________________________ — ................................ 15.22
Photostats and reproductions ______________________________________ 37.50
$188.07 188.07
$5,188.07”

Claimant also acknowledged that the expenses he incurred in going to Springfield and all other items of expense were paid to him by the firm of Halfpenny and Hahn.

William J. Kiley, one of the attorneys representing Warren E. Wright and his administrative assistant, was called as a witness by claimant, and testified as follows: On December 28 or 29,1955, Mr. Wright informed him of the contemplated action by the Attorney General. On January 3, 1956, Mr. Wright and he went to the office of Harold Halfpenny where they met with Mr. Halfpenny, Mi*. Butterfield, the claimant, and he believes Bussell Morris, son-in-law of Mr. Wright.

The proceedings were discussed, and he, William J. Kiley, asked the question as to who was going to represent Warren E. Wright. The words he remembers using were “Do you want me to represent you? Do you want Mr. Butterfield? Do you want any combination, or do you want all of us? Mr. Wright’s reply was that he felt we would make a good team, and he would like to have us all work on the case. ’ ’

This witness worked with claimant and Mr. Halfpenny, and submitted no statement for services to Warren E. Wright. He accompanied claimant to a conference with Mr. Wright in Springfield regarding payment of fees sometime at the end of March or in April of 1956. During the discussion Mr. Wright said that, as far as he was concerned, he saw nothing within his budget to warrant the payment of attorneys’ fees, that he wanted to see them paid, but he didn’t know how he could do it.

Also pertaining to this witness’ testimony, claimant’s exhibit No. 2 was admitted without objection by respondent. It is a letter from Mr. Kiley to the Attorney General in response to a request for information. It reads as follows:

“Dear General Castle:
This will acknowledge receipt of your letter of November 20, 1958 relating to the above claim.
I was one of the attorneys of record in the above case, and was present on January 3, 1956 when Warren E. Wright, who was at that time Treasurer of the State of Illinois, employed myself, Mr. Harold Halfpenny, and Edwin S. D. Butterfield, the claimant herein, to represent said Warren E. Wright as State Treasurer in the mandamus procedure, which was in the process of being filed by the Attorney General against the State Treasurer in the Supreme Court of the State of Illinois.
I personally worked with Mr. Butterfield during the entire proceeding relating to this matter. We, as you know, were working under pressure, since this was an important and serious matter, and time was of the essence.
Mr. Butterfield and myself worked almost every day and evening, including Saturdays and Sundays, on this matter to the exclusion of our regular practice while this proceeding was pending before the Supreme Court of Illinois.
You undoubtedly are familiar with the motions, pleadings and briefs that we prepared and filed in this proceeding.
I have read the petition for attorneys’ fees filed by Mr. Butterfield and the exhibits attached thereto filed with the Court of Claims, and have also reviewed my files in this matter.
It is my opinion, based on the above, that thé matters contained in Mr. Butterfield’s petition are substantially correct.
It is my further opinion, this being based on personal knowledge of this litigation, and the services performed by Mr. Butterfield therein, that the amount requested for attorneys’ fees by Mr. Butterfield is a reasonable minimum for his services in this proceeding.
Should you desire any additional information from me pertaining to this matter, please advise, and I will be glad to forward same to you.
Sincerely yours,
William T. Kiley”

Respondent called Harold T. Halfpenny as a witness. He testified that he was called by Warren E. Wright on New Year’s Day, 1956, and discussed the pending suit with him, and made arrangements to confer the next day in Mr. Halfpenny’s office.

The claimant, Butterfield, had space in Halfpenny and Hahn’s office, and had worked with that firm on occasions.

He further testified that claimant was interested in the toll road situation, and that he called him at his home, and told him that Warren E. Wright had talked to him, Halfpenny, about representing him. Mr. Halfpenny then asked claimant if he would be interested in the case, and, if so, to come down and talk it over, which he did.

Mr. Halfpenny stated that he was present at the January 3 meeting, but did not recall hearing Mr. Wright state that he would like to have claimant work with Mr. Halfpenny and Mr. Kiley. He, Mr. Halfpenny, had always represented Mr. Wright, and agreed to represent him in the case. He further stated that he had discussed other counsel with Mr. Wright prior to the meeting of January 3. Mr. Wright had asked whether he, Halfpenny, could work with Mr. Kiley, to which the witness replied that he would he very happy to work with Mr. Kiley, and that “we were going to have Mr. Butterfield work with us also.”

He further stated that, after claimant had rendered his statement to Warren E. Wright, a discussion was had between Mr. Halfpenny and Mr. Butterfield concerning it. Mr. Halfpenny’s testimony regarding this conversation is as follows: “I told him at the time that we were in charge of the litigation, and that we would try to work out something in the way of a fee, that I felt the figure he had sent was, under the circumstances, that he probably was entitled to the amount, but in the realities of Mr. Wright’s position as Treasurer and his future, and the problem that was involved, that I felt that we had to do it kind of as a public service, and that we couldn’t expect to get paid for what we were ordinarily entitled to, and that I would work something out with Mr. Wright over the period of the year that we would get paid, and whatever we received he would receive one-third of it, and that was done.” Mr. Halfpenny further testified as follows: “Mr. Wright’s position on this was that Mr. Butterfield was in this by our firm, and, at the time this discussion was going on, that he thought it was our obligation to pay his fee.”

Also pertaining to this witness ’ testimony is respondent ’s exhibit No. 8 admitted without objection by claimant, which exhibit is a letter from the witness, Harold Halfpenny, to the Attorney General in response to a written inquiry from the Attorney General. It reads as follows:

"Dear Sir:
This will acknowledge receipt of your letter of November 20 in regard to the above entitled matter, enclosing copy of petition filed by Edwin S. D. Butterfield in the Court of Claims, State of Illinois, for legal services rendered concerning the case of People ex rel Latham Castle, Attorney General, vs. Warren E. Wright, State Treasurer, in which you requested any information I may have pertaining to the validity of Mr. Butterfield's claim.
Please be advised that Mr. Warren Wright did not retain the services of Edwin S. D. Butterfield in this matter. However, we engaged Mr. Butter-field as associate counsel, and paid him the sum of $1,500.00 for his services.
I have no desire to enter into a controversy as to whether his claim for $7,500.00 is fair and reasonable for services rendered, as it was our feeling that we were entitled to a very substantial fee for the services rendered in this matter; but at the time the Attorney General indicated that he would not allow the payment of such fees.
If there is anything further that you desire in regard to this matter, feel free to communicate with me.
Very truly yours,
/s/ Harold Halfpenny”

He further testified that their bill was paid on December 12, 1956, and that there had been discussion throughout the year in regard to fees, that the problem was whether anyone could be paid. In the fall of 1956 the Attorney General rendered an opinion to the Treasurer, which was admitted in evidence as respondent’s exhibit No. 5-E, and which reads as follows:

“Dear Sir:
I reply to your inquiry as to whether the fees that you incurred in defending in your official capacity the case of People vs. Warren Wright, 8 Ill. (2d) 454, may be paid from appropriations to the State Treasurer’s office.
. As appears from the Supreme Court’s opinion above cited, that case was an action against you in your official, not in your private, capacity as State Treasurer to compel you to take action in that capacity to effect the sale of toll road highway bonds.
That the questions raised by you and your counsel were substantial appears from the fact that arguments in your behalf elicited two dissents from the Supreme Court.
Ordinarily, State officials must be defended only by the Attorney General and his assistants. Fergus vs. Russel, 270 Ill. 304; People vs. Toll Highway Commission, 3 Ill. (2d) 218, and authorities collected and discussed in that case, at page 236. But, in the above mentioned litigation, the Attorney General conceived it to be his duty to appear for the relator, a conception that was approved by the Supreme Court’s decision in that case. He could, therefore, not appear as your counsel.
If the State Treasurer, under these circumstances, had been powerless to employ counsel, the State itself would have been deprived of the important right of obtaining a binding decision of the highest court.
The action of the State Treasurer in this case was not a willful one nor a violation of the duties. He was entitled to receive the guidance of the court of last resort, and the welfare of the State itself depended on his obtaining such a decision.
Under these facts, it appears inevitable that the State Treasurer was compelled to employ counsel. It is my opinion that the Supreme Court would hold that under these conditions the State Treasurer would be authorized to employ an attorney, and necessarily it follows that he is authorized to pay him out of any available appropriation to the State Treasurer’s office.
It is, therefore, my opinion that the State Treasurer, out of the funds appropriated for the conduct of his office, may pay the counsel, who represented him in the case of People vs. Wright, 8 Ill. (2d) 454. To hold otherwise would be to disable the State in the performance of its necessary governmental functions, and would deprive public officials in cases such as this of the right to resort to the courts for a binding determination of vitally important matters. It cannot be believed that the law of our State could be so construed as to make submission to the courts impossible in circumstances such as this.
Yours truly,
/s/ Latham Castle
Attorney General”

At the time the Attorney General’s opinion was given, the maximum amount available in the Treasurer’s appropriation for payment of legal fees and expenses was the amount of the statement rendered by Halfpenny and Hahn, namely, $5,188.07, which statement was prepared, submitted and paid.

It is apparent from the above that the evidence is in conflict on the point of whether or not claimant was to look to Warren E. Wright and the State, or to Harold Halfpenny and his firm for his fees.

As claimant points out, his testimony regarding the conversation of January 3, 1956 with Warren Wright is not directly contradicted by Mr. Halfpenny. Mr. Halfpenny, who was present, stated that he did not recall hearing that portion of the conversation. Mr. Halfpenny was under the impression that he was in charge of the litigation, and that it was his responsibility to bill the client and pay claimant.

Warren E. Wright was not called as a witness by either claimant or respondent. He was out of town on the date of the hearing, and neither party moved for a continuance.

From the evidence before us, we find that claimant was hired by Warren E. Wright as Treasurer of the State of Illinois. Although Mr. Halfpenny was under the impression that claimant was brought into the case by him, the significant fact is that claimant was requested by Mr. Wright to perform legal services on his behalf in conducting the defense of the case.

Apparently claimant had good reason for understanding such to be the case, inasmuch as Mr. Kiley, the administrative assistant of Mr. Wright, also had the same understanding. Claimant rendered the services, and forwarded his statement to Mr. Wright while under this impression.

The conversation with Mr. Wright from which this understanding was gained was such as to lead a reasonable person to believe that his services were requested by Mr. Wright, and that a fair fee would be paid for those services. This establishes a direct hiring, regardless of what Mr. Halfpenny understood Mr. Wright to have intended. Respondent contends that claimant’s designation as “of counsel” on the briefs is inconsistent with and precludes him. We do not agree. This designation has nothing to do with who is to pay an attorney’s fee. In many instances it is applied to the particular lawyer, who prepares the briefs and presents the matter to the court.

It is all a matter of agreement as to who is to pay an attorney’s fee whether the lawyer be designated “of counsel” or something else.

Respondent contends that Mr. Wright had no right to contract for these services at the State’s expense. The Attorney General could not represent him as State Treasurer, inasmuch as the Attorney General had commenced the action against him. Mr. Wright was informed of this prior to hiring claimant, and claimant’s exhibit No. 4, a letter dated January 9, 1956, from the Attorney General to Mr. Wright, confirmed the fact that the Attorney General could not represent him.

Ordinarily, the State Treasurer would be required to look only to the Attorney General for representation in any matter involving the State Treasurer in his official capacity. Fergus vs. Russel, 270 Ill. 304.

It was the Attorney General’s opinion, however, as expressed in his letter dated September 11, 1956, being respondent’s exhibit No. 5-E, that, because of the situation presented, the State Treasurer would be authorized to employ an attorney to represent him in the matter, and pay the attorney’s fee from any available appropriation to the Treasurer’s office.

We agree with the Attorney General’s opinion. A State officer, charged with the responsibility of administering his office as a public trust for the people of Illinois, is under an obligation to defend such an action as this in which he is involved in his official capacity, and which concerns matters affecting the welfare of the State of Illinois.

If the Attorney General advises that he is unable to appear on behalf of such State officer because of a conflict of interest, then the State officer must necessarily resort to other counsel of his own choosing in order to properly defend such an action.

The reasonable attorney’s fees in such an instance should be at the State’s expense rather than the expense of the State officer, since ordinarily the Attorney General would perform these services at no expense to the State officer in the absence of such conflict.

We have examined the briefs and opinions of People ex rel Latham Castle, Attorney General vs. Warren E. Wright, and have concluded from such examinations that Warren E. Wright, as State Treasurer, was obligated to appear by counsel in his official capacity, and under the circumstances was entitled to engage counsel of his own choosing at the expense of the State of Illinois.

With respect to the amount of the fee, claimant testified that he expended approximately 240 hours in performing the required legal services involved, for which services he rendered his statement in the amount of $7,500.00. Three attorneys, namely, William J. Kiley, Harold Halfpenny, and John J. Yowell, a past president of the Chicago Bar Association, in addition to claimant, testified that his fees were reasonable for the matters and time involved.

Evidence to the effect that the amount of the fee was excessive was the testimony of respondent’s witness, George W. McGurn, Assistant Attorney General, who participated in the litigation of People ex rel vs. Wright. His opinion was that the fee should be “somewhere in the neighborhood of $3,700.00.”

We have examined and considered all of the evidence on the question, the opinion of the Supreme Court, and the briefs filed therein on behalf of Warren E. Wright, and have arrived at what we feel is a fair and reasonable amount. We are not bound by the opinion evidence offered by either party, although we have considered it in arriving at our decision. In our judgment a fair and reasonable fee for the legal services rendered by claimant is $5,500.00. He has already received $1,500.00 on account. He is, therefore, entitled to an additional $4,000.00.

Respondent next contends that claimant’s acceptance of the $1,500.00 check from Halfpenny and Hahn constituted payment in full for his services. The evidence on this point is that Halfpenny and Hahn delivered the check to a creditor of claimant, and that claimant is willing to consider it a part payment of the fee due him from the State. He did not know that Halfpenny and Hahn had submitted their statement to the Treasurer, or the amount of the statement, until after it was done and the money paid.

At no time did claimant give any indication of withdrawing his statement for attorney’s fees submitted in April, 1956. We find no sufficient evidence in the record to establish this as an acceptance by claimant as payment in full of his fee.

Lastly, respondent contends that the authority of Mr. Wright as State Treasurer to contract for legal services was limited to the availability of unexpended funds in the State Treasurer’s appropriation, and that the payment of the Halfpenny and Hahn bill exhausted the amount, which could be paid, and, therefore, no further amount is available for payment to claimant, even if he is entitled to it.

Respondent relies on the Statutes and Constitutional provisions, which prohibit State officials from contracting indebtedness against the State in excess of the amount appropriated by the Legislature. This case, however, is not in violation of these. Here we have a situation where neither Mr. Wright nor the Legislature could anticipate the necessity of his defending an action brought against him in his official capacity by the Attorney General, who ordinarily would represent him. The Attorney General himself recognized the necessity for Mr. Wright to employ counsel at public expense, although in his opinion, respondent’s exhibit No. 5-E, went only so far as to state that Mr. Wright could pay the fees out of available appropriations. Although Mr. Wright could pay no more funds than were in his unexpended appropriations, we do not believe that the power to incur legal fees should be limited to the available and unexpended appropriations. Since Mr. Wright was entitled to defend this action in his capacity as State Treasurer by counsel of his own choice, he had the authority to retain attorneys to represent him until the action was concluded, irrespective of the status of his appropriations.

Under the law, as we see it, Warren E. Wright, as State Treasurer, had express authority to defend this action by counsel of his choice, even though it meant incurring an indebtedness against the State of Illinois for reasonable attorneys’ fees that exceeded his appropriations.

Therefore, the amount yet due claimant in the sum of $4,000.00 is a valid claim, and should be paid. The claim is hereby allowed in the amount of $4,000.00.

Concurbing Opinion

Tolson, C. J.

Respondent has urged that any award made in this case would violate the Constitution, which prohibits State officials from contracting an indebtedness in excess of the amount appropriated by the Legislature. This rule of law was announced in Fergus vs. Brady, 277 Ill. 272, and, of course, would be a complete bar to the claim, if, in fact, there was no appropriation made by the Legislature to pay such a claim.

The Court will take judicial notice of the fact that in 1955 the Legislature made an appropriation for the office of the Treasurer of the State of Illinois for the biennium. We have found from the evidence that on January 3, 1956 the State Treasurer engaged the services of claimant, and, on that date, there remained in his appropriation the following sums:

1. Contingent Fund ..............$ 20,000.00

2. Contractual Fund .............. 103,235.74

We have previously held in the case of Schutte and Koerting, Et Al, (Consolidated Cases) vs. State of Illinois, 22 C.C.R. 591, that a claim would be allowed if at the time of the contract there were sufficient funds remaining unexpended in the proper appropriation to pay for the same.

In the light of this evidence, it is apparent that the State Treasurer was obliged to secure separate counsel, as the Attorney General was unable to represent him. There were sufficient funds in the contractual account, and, if need be, funds could have been transferred from the contingent fund to pay this claim. An award should be made in this case.


author: Fearer, J.

text:
    (No. 4838
    Donald W. Hutchinson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

    Charles M. Loverde, Attorney for Claimant.
    William L. Guild, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Donald W. Hutchinson, has filed an amended statement of claim for property damage to his vehicle in the amount of $710.00.

It appears that on August 28, 1957, at or about the hour of 10:00 A.M., at the intersection of U. S. Route No. 66 and Towando Avenue, which is located about five miles north of Bloomington, McLean County, Illinois, claimant was proceeding in a northerly direction in the right-hand lane on Route No. 66. Route No. 66 at that point is a four-lane highway, which is divided by a gravel strip of approximately five feet in width. Milton Wasserman, a member of the Illinois National Guard, was proceeding in a southerly direction on U. S. Route No. 66, driving a 2% ton army vehicle. It was drizzling at the time of the accident, and, as a result of the same, the highway was wet and presumably in somewhat of a slippery condition.

It appears that the truck driven by Wasserman skidded across the gravel divider and struck claimant’s vehicle on the left side immediately behind the driver’s seat. There seems to be no dispute that both drivers, immediately prior to the accident, were traveling at a lawful rate of speed.

Claimant, being a resident of California at the time this matter was heard, supplemented his personal appearance with an evidentiary deposition, which was properly admitted into evidence. In the deposition claimant swore to the fact that, as he was proceeding along his side of the highway, he observed the army vehicle when it was a considerable distance ahead. Claimant also stated that he saw the army vehicle go into a skid, and, as he was crossing a point in the highway, identified as the intersection of U. S. Route No. 66 and Towando Avenue, the army truck suddenly veered over to his side of the highway and struck his vehicle behind the driver’s seat. At the point of impact claimant’s car was just past the intersection and proceeding in a northerly direction. Claimant stated that he may have applied his brakes instinctively when he saw the truck skidding, although he didn’t have any particular recollection of it, because he did not consider himself to be in any danger.

Wasserman’s version of the accident is that, as he approached the intersection of Towando Avenue and Route No. 66, a vehicle, identified as a Chevrolet with an unidentified driver, was proceeding in a southerly direction in front of him. The truck driver also stated that the Chevrolet vehicle, prior to the point of the accident, signaled for a right-hand turn. Wasserman, seeing that the road was clear, moved to the left lane in order to pass the Chevrolet. As he was about to pass, the Chevrolet moved toward the left and partially blocked the left-hand, southbound passing lane, forcing the army driver to apply his brakes in an attempt to avoid colliding with the Chevrolet. As a result of this emergency situation, causing Wasserman to suddenly apply his brakes, the 2% ton truck went into a skid causing the truck to leave the highway, veer across the gravel divider, and strike the left side of claimant’s 1956 Chrysler 4-door sedan.

The law is clear in Illinois that a driver acting in a sudden emergency need not use the same degree of self possession and coolness as when there is no imminent, peril, but he is required to act as an ordinarily prudent person would act under similar circumstances. On the other hand, the fact that a driver is confronted with a sudden emergency does not lessen his duty to use ordinary and reasonable care, but the emergency is one of the circumstances to be considered in determining whether he did exercise such care. The fact that a driver is guilty of error of judgment, or might have taken some other course of action, does not indicate a lack of due care when an ordinarily prudent person would have acted similarly under the circumstances. However, a driver, whose failure to use due care causes him to swerve' suddenly to avoid one car, cannot escape liability for striking another, which was traveling in its proper place on the highway.

The facts in the instant case show that claimant was proceeding in his proper lane of traffic at a lawful rate of speed, and was exercising due care as an ordinarily prudent person would have done under similar circumstances.

The facts also show that the driver of the army vehicle was a contributing factor to the emergency situation, which was created by the unidentified driver of the Chevrolet proceeding immediately in front of him, in that he had knowledge that the highway was wet and possibly slippery, and that a sudden application of the brakes would very likely cause his vehicle to skid and possibly go out of control.

Therefore, taking all the facts and circumstances into consideration, the necessary conclusion in this case is that claimant did not contribute to the accident in any way, but that Milton Wasserman, driver of the army vehicle, did not, at the time of the accident, have proper management and control of his vehicle, and by not having proper management and control of his vehicle negligently caused the damage to claimant’s car.

Commissioner George W. Presbrey heard this case, and recommended that an award of $710.00 be paid to claimant, Donald W. Hutchinson, for damages to his motor vehicle, which under the facts and circumstances of this case is a proper recommendation.

It is, therefore, the order of this Court that the sum of $710.00 be awarded to Donald W. Hutchinson.


author: Wham, J.

text:
    (No. 4843
    Alberta Hansen, Administrator of the Estate of Edward A. Boegen, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

    Dixon, Devine and Ray, Attorneys for Claimant.

      William G. Clabk, Attorney General, for Respondent.
   Wham, J.

This is an action commenced and maintained by claimant, Edward Boegen, until his death, which resulted after the evidence was heard by the Commissioner from causes other than those upon which this action is predicated. It was continued thereafter by the administrator of his estate against respondent, State of Illinois, to recover $25,000.00 in damages for personal injuries, which Edward Boegen sustained on May 24, 1958, when he fell from a nature path or trail into a canyon on White Pines Forest State Park near Dixon, Illinois, while supervising several boy scouts in his troop on a hike through the park.

The complaint charged that claimant stepped on a portion of the path or trail adjoining a gorge, and a crumbling of dirt on the outer edge of the path, or a slippery condition, or both, caused him to slip and fall into the gorge, a distance of 100 feet. The complaint further charged that the State of Illinois had allowed a hazardous and dangerous condition to exist, and was guilty o'f negligence in one or more of the following respects :

(a) Failed to provide notice or warning of the hazardous condition of the trail.

(b) Failed to provide notice or warning of the proximity of the dangerous gorge to the portion of the trail in question.

(c) Failed to keep the trees, foliage and underbrush surrounding the trail in question cleared sufficiently, so that travelers thereon might observe the proximity of the dangerous gorge to said trail.

(d) Failed to provide guard rails, platforms, widened trail, or any other means for hand-grips or protection for travelers on the trail at the said point of proximity to said dangerous gorge.

(e) Kept and maintained said trail in a dangerous, hazardous and unsafe condition, although it knew, or, in the exercise of reasonable care, would have known thereof for a long time prior to said injury to claimant.

(f) Maintained said trail in a slippery and otherwise dangerous and defective condition at the point in proximity to said gorge, although it knew, or, in the exercise of reasonable care, would have known thereof for a long time prior to said injury to claimant.

(g) Otherwise failed to exercise reasonable care in establishing and maintaining the path or trail over which claimant was traveling at the time aforesaid.

The facts concerning the happening of the accident, as shown by the evidence, are as follows:

On May 23, 1958, Edward Boegen, Scout Master, 29 years of age, and his troop of six boy scouts attended a camp-out with three other troops at White Pines State Park, near Oregon, Illinois, paying a fee to enter the park. Boegen had been there ten years before, but was not familiar with its trails.

The next morning Boegen took his troop on a nature study hike. They used a map on which the buildings, creek, shelters and trails were shown. The map was used in selecting their route, including the trail on which Boegen was injured.

They started from the lodge on a wide main trail, turned off on a foot path, which was shown in claimant’s exhibit No. 1, then onto a secondary trail on which Boegen was injured. Main trails differ from secondary trails only in that they are at least partially man made, wider, and maintained to keep weeds low. Secondary trails are formed by constant usage of hikers. There were no designations on the map furnished claimant, or signs in the park to distinguish the trail as main or secondary.

There were no signs showing directions to follow, or indicating one trail from another, or warning of any dangers. A sign with the legend “Danger — Loose Bock” was 25 yards away from the place where Boegen and his troop entered the trail upon which he was injured. They did not pass it, and did not see it. This was the only sign in the vicinity pertaining to the trail.

The trail’s dirt surface was one and a half to two feet wide, and was well worn, so that the underbrush did not close in on it. On both sides, however, was a heavy foilage, which did not grow on the path itself. It was wet or damp in places in the area where Boegen fell, but there was no standing water. To the left of the trail the ground sloped steeply up. Pine Creek paralleled the trail on the right. They walked in single file with Mark Omoto, one of the scouts leading, and David Madsen, the last of the scouts. Boegen was 20 feet behind Madsen and about 40 feet from Omoto. Claimant’s exhibits Nos. 2 and 4, photographs of the trail showing where Boegen fell, were offered and admitted into evidence. At the point where he fell, the land had been washed back by natural drainage causing the cliff edge to cut back sharply from Pine Creek into the edge of the trail and out into a narrow deep gorge, which is shown in claimant’s exhibit No. 3. There were no guard rails or protective devices in that area, nor were there any warning signs.

The Park Custodian, Earl Kappenman, testified that this gorge could not be seen from the trail until a person was within six feet of it, and then only if a person was looking for it.

As the scouts entered this area, they did not see this gorge, nor did they see any indication of danger, as they approached it. Omoto led the scouts around a tree to the left of the. trail, and then back onto the trail, because the path was wet at that point. After returning to the trail, he bent over to tie his shoe lace, and for the first time saw the gorge. He then told Eeh, the second scout, to look, and the rest clustered around him for a few seconds and went on. Madsen testified that, as he reached the tree, he turned, and saw for the first time the gorge where prior thereto he had thought there was only a little shelf of land. He gave as his reason for going around the tree the fact that he was afraid he might slip and fall off onto what he thought was a shelf of land a few feet from the trail. It was only after passing around the tree that he saw what the other scouts had seen, namely, the deep gorge immediately adjacent to the edge of the trail.

Claimant did not hear any of the scouts discussing this gorge, nor did he see them clustered on the trail. He saw Omoto lead the troop around the tree, and considered at the time that this was poor hiking practice, because they might slip on the incline and fall. He looked around to the left and right and ahead without stopping, and saw no apparent reason why they should go around the tree. He surmised that they were playing follow the leader, and, as he walked on, was thinking of what to tell the boys, because he did not want them to do the same thing on their return trip. He testified that he saw no gorge or change in the lay of the land or foliage, and the first thing he knew he was flat on his back. He states that he did not slip on the damp path, but thought that solid ground gave way and collapsed beneath him. He slid along on Ms back until he hit sometMng and passed out. He landed at a point 46 feet below the trail.

Madsen testified that he heard a sound, turned, and saw claimant going off into space past the cliff. The scouts went down into the bottom of the gorge after him., as did a troop of girl scouts, who had been hiking in an. opposite direction on the same trail. He received very serious injuries to his person, and was removed to the Dixon Hospital, and then to the Illinois Research Hospital at Chicago where he remained up to and including the date of the hearing. He thereafter died in the Oak Forest Institution on October 15, 1959.

Respondent contends that the cases of Kamin vs. State of Illinois, 21 C.C.R. 467, and Stedman vs. State of Illinois, 22 C.C.R. 446, control, and there can be no recovery, since there was no duty to maintain a guard rail at that point, and that the evidence fails to establish a knowledge or constructive notice of an unsafe condition. Further, that the failing to place guard rails at the edge of the canyon was not the proximate cause of claimant’s, injury, but a mere condition, which rendered possible the happeMng of the accident.

We have carefully considered the record in this case- and the authorities cited by respondent. With respect to the Kamin case, we believe it is not completely in point.. In the Kamin case the canyon into which claimant fell was apparent to her and clearly visible. In the instant case the evidence establishes that it was not visible to claimant. Not only does the evidence of claimant establish the fact that it was not visible, but also he is supported by the scouts, Omoto and Madsen, and claimant’s witness, Kappenman himself. Moreover, the photographs, which are before the Court, fail to reveal a canyon due to the dense foliage adjoining the trail.

In our view of the case, it is immaterial whether claimant slipped while he was walking on the path, or a portion of the path crumbled from under him. Claimant’s allegation in the complaint, which we consider material under the proof, is the charge that the State negligently failed to provide notice or warning of the proximity of the dangerous gorge to the portion of the trail in question.

We do not consider that the trail itself was in a hazardous condition, nor do we consider that the State was under any duty to keep the trees, foliage, etc., surrounding the trail in question cleared to provide a view, nor do we feel that the State was required to provide guard rails at this particular place. Claimant’s case must stand or fall on the allegations set forth above, and, therefore, the Kamin case does not pertain to this situation.

We have also considered the Stedman case on which respondent relies, but it likewise fails to control this situation. In the Stedman case claimant intentionally walked off of the pathway in the night time when he knew that he was in the proximity of a precipice. In this case, however, claimant was walking where he had a right to walk, and did not step off the path. Bather, he fell, and then went off the path down into the canyon.

The question before this Court is whether or not respondent owed a duty at this particular place in the park to warn of the proximity of the canyon.

Obviously, the State, in maintaining a nature park, is not obligated to warn of every dangerous place within it. It is, however, obligated to warn of a danger that exists along a trail, which it knows is being used by the public, who would have no knowledge of the existing danger.

The evidence clearly shows that respondent knew that this particular trail was used by boy scouts, girl scouts and other members of the public. Although it did not create the path in the first instance, it did assume some control over it after it had been created through years of usage by the public with its consent. The testimony establishes that it had even erected a sign at one point warning of loose rock along this same path, and the testimony of Mr. Earl Kappenman, Park Custodian, indicates that it was inspected from time to time.

It, therefore, evolves upon us to determine whether or not the evidence has established such a dangerous situation, as would call for a warning by the State.

Here was an unusual condition. All along the trail, up to the particular point involved, the path was a safe distance from the edge of the canyon. It was estimated by the witnesses to be as much as a block from the trail. Users on this path were, therefore, lulled into a sense of complacency by the distance separating the edge of the path from the place of danger up to the point where suddenly a cavern immediately adjoined the one and a half to two foot pathway bordered on the opposite side by an upward slope. This created a condition where the slightest misstep would result in a certain fall to the bottom of the canyon and resulting serious injury.

This was not one of the inherent risks to hiking assumed by the hiker, since it constituted a risk unknown to him. Only those risks that are known and realized by the person coming upon the land in the exercise of due care can be classified as those which such a person would be held to assume under the law.

We believe from the evidence that respondent was negligent in failing to provide notice or warning of the proximity of the dangerous gorge to the portion of the trail in question. This is not to say, however, that respondent must warn of every dangerous condition in a park. In many instances it would place an unreasonable burden on the State to require it to warn or protect against injury. In other instances, even though a dangerous condition exists, the State should not be placed under a duty to either warn or guard against an injury, where such danger is as obvious to the person using that portion of the park as to respondent. Then, too, cases may arise wherein paths have been created by hikers, and have not been recognized as such by respondent.

The next question to resolve is whether or not claimant was in the exercise of reasonable care for his own safety. We have carefully reviewed the testimony on this point, and find that there is no evidence indicating that he was doing anything other than what an ordinary person would do under the same or similar circumstances. It cannot be said that he was guilty of contributory negligence in not seeing the gorge at the point where he fell, since all of the testimony in the case establishes that the others ahead of him did not see it until they were right on it, and particularly in view of the fact that respondent’s own witness testified that it could only be seen when within six feet of it. Moreover, as hereinabove stated, the pictures introduced into evidence disclose a situation that would not be apparent to a person in the exercise of ordinary care until the last moment. Nor can it be said that the mere falling on the trail, whether by slipping, or by a portion of the trail giving way, could be chargeable as contributory negligence.

We "believe that claimant has borne the burden of proof, and that an award should be made in this case.

"With respect to the amount of damages, the rule is well settled that a cause of action for personal injuries survives to the personal representative of a deceased, where the death of the injured was not caused by the injuries received by the decedent.

In such action recovery is limited to the loss of earnings, medical expense, disability, and pain and suffering incurred and sustained from the date of the accident to the time of death.

Alberta Hansen, Administrator of the Estate of the original claimant, Edward Boegen, deceased, was substituted as party claimant after the suggestion of death had been filed.

In her affidavit filed in support of her petition, claimant administrator stated that:

“The said claimant, Edward A. Boegen, died on or about October 15, 1959 from causes other than the injuries, which were the basis of the complaint filed in this cause; and that attached hereto as exhibits A and B are copies of letters, which were received by the affiant and her attorneys, which show the result of an autopsy of the said Edward A. Boegen, claimant.”

The pertinent portions of exhibits A and B, attached to said petition, read as follows:

EXHIBIT A
“The microscopic study of the organs have been finished, and the findings are summarized as follows:
1. Mr. Edward Boegen suffered of idiopathic epilepsy, i.e., no lesion could be found to explain the epilepsy. The microscopic changes found in the brain were just secondary to the repeated convulsions, but they were not the cause of the epilepsy. These findings are, therefore, in accordance with our present knowledge about the so-called idiopathic epilepsy.
2. The paralysis of the lower extremities found its explanation in the extensive damage of the spinal cord (demyelinization), which in turn was secondary to the injury suffered by the patient.
The patient had a severe liver disease, so-called post-nectotic cirrhosis, which has developed secondary to hepatitis of viral etiology.
(Signed)
Respectfully yours, Paul B. Szanto, M.D. B. Martinez, M.D. Pathologists”
EXHIBIT B
“OAK FOREST INSTITUTIONS Oak Forest, Illinois February 3, 1960
Mr. George K. Ray Attorney at Law 121 East First Street Dixon, Illinois
My dear Mr. Ray:
I am attaching herewith a copy of the autopsy report in the case of Edward Boegen, who died in this hospital on October 15, 1959. The cause of his death was bronchopneumonia with a background of idiopathic epilepsy. Although this patient gave a history of severe injuries to the spine and to the thoracic cage following an accident during May, 1958, with resulting paraplegia, it is our opinion that this did not directly contribute to the cause of the death of the patient.
Our confirmed and substantiated diagnosis during the period of his hospitalization were: Spinal cord lesion due to accident, 1958, paraplegia due to cord injury and associated with incontinence of urine and bowel, multiple decubiti, idiopathic epilepsy, bronchopneumonia.
I am also attaching herewith a copy of a letter written to Mrs. A. Hansen, 3023 N. Oakley Avenue, Chicago 18, Illinois, sent to her at the request of Dr. F. H. Ketola of 1791 W. Howard Street, Chicago, Illinois, by our pathologist, which gives additional microscopic findings resulting from the post mortem examination.
It is recommended that should you desire additional information, our entire chart on this case is available to you.
Respectfully yours,
Eugene J. Chescrow, M.D.
Medical Superintendent”

No further testimony was adduced by either party, and respondent has filed no motion nor objections to the claimant administrator proceeding with this cause as a survival of the personal injury action commenced by Edward Boegen, deceased.

The date of death appearing from the petition of the claimant administrator is October 15, 1959. The injury occurred on May 24, 1958.

The evidence established that Boegen had been in good health, was permanently employed at an average of $78.00 per week, and living with his widowed mother. His medical expenses to the date of the hearing held on March 10, 1959 totaled $1,787.30. The evidence established that he would require extensive medical attention and care the rest of his life, although at the time of the hearing Dr. Eric Oldberg, Director of the Division of Neurology and Neurological Surgery at the Illinois Research Hospital, testified that Boegen was at the time of the hearing receiving all hospital, professional and medical services without charge, except those noted above.

Dr. Eric Oldberg further testified that, “this patient had a transverse complete lesion of the spinal cord at the fifth dorsal segment, which means that he had no voluntary muscle power below a portion of his body just below the line adjoining the nipples; that he had no sensation below that level, and that he had no bowel or bladder control. In addition to this, the patient had some fractured ribs on the left side, and he had a head injury, which was operated upon in order to rule out the possibility of there being a blood clot, which could be drained. In addition to this, he had an operation on his bladder, so that urinary infection could be better controlled. He also had plastic surgery for extensive bed sores. He had pain when he came into the hospital, but, because of his type of injury, such pain would not recur.”

We find from the evidence that his lost wages from the date of the accident to the date of his death at $78.00 per week total $5,616.00. His medical expense, as established by the evidence, was $1,787.30.

It is difficult to arrive at a sum of money for the physical disability, pain and suffering, etc., of deceased for the 72 weeks he lived after the injury. There can be no consideration of the fact that he would be permanently disabled, since death terminated all future damages.

We believe that the sum of $10,000.00, in addition to the lost wages and medical expense, is warranted by the evidence. Therefore, we recommend that the claim of Alberta Hansen, Administrator of the Estate of Edward A. Boegen, deceased, the original claimant, be allowed in the amount of $17,403.30.


author: Tolson, C. J.

text:
    (No. 4871
    William H. Egan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

    Rudolph J. Westphal, Attorney for Claimant.
    Grenville Beardsley, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On June 4,1959, William H. Egan filed his complaint in two counts against the State of Illinois seeking an award for damages to his property, which were caused by a falling aircraft belonging to the State of Illinois.

It appears from the evidence that Lieutenant Hugh B. Lott, Jr. was a member of the Illinois Air National Guard, and, on the 14th day of March, 1959, was flying on a routine training mission. He was returning to the Greater Peoria Airport in Peoria, Illinois on the date in question, when his plane was allowed to “stall out”, and fell upon a certain building belonging to claimant. The fall of the plane completely demolished the building and all of the contents.

The following is a Departmental Report from the office of the Adjutant General, the tenor of which admits liability because of pilot failure:

22 June 1959
“Honorable Grenville Beardsley Attorney General of Illinois Springfield, Illinois
Dear Sir:
The following comments are made in reply to your request of 6 June 1959 concerning the claim against the State of Illinois made by Mr. William H. Egan (Claim No. 4871).
2d Lt. Hugh B. Lott, Jr., AO3079986, was appointed and federally recognized in the Illinois Air National Guard on 29 June 1957, with duty assignment as Pilot Tactical Fighter, 169th Tactical Fighter Squadron (Sp. Del.).
Lt. Lott was, as directed by Flight Order No. 72 (Attachment No. 1), piloting an F-84F Aircraft, Serial No. 526544, which crashed on the property belonging to Mr. Egan at approximately 1320 hours on 14 March 1959.
Lt. Lott at the time of the accident was performing inactive duty training as authorized under Title 32, United States Code, Section 502. The accident occurred during the landing phase of the flight when Lt. Lott allowed the aircraft to ‘stall out’ while turning on the final approach for landing. The accident and subsequent damage to Mr. Egan’s property is attributable to ‘pilot error’ on the part of Lt. Lott in not maintaining sufficient air speed and proper altitude of the aircraft to effect a safe landing at Greater Peoria Airport, Peoria, Illinois.
Attachment No. 2 is a report of the aircraft accident investigating officer setting forth all of the facets involved in the accident.
In regard to the above, attention is invited to the opinion of your office, dated 31 July 1947, concerning claims for damage to private property by government aircraft assigned to the Illinois National Guard.
Very truly yours,
LEO M. BOYLE
Maj. Gen., AGC, Ill ARNG
The Adjutant General”

The case was heard on February 18, 1959 by Commissioner George W. Presbrey. A copy of his report is as follows:

COMMISSIONER'S REPORT
“The evidence in the above entitled cause was heard and taken on September 18, 1959, in the City of Peoria. Rudolph J. Westphal represented claimant, William H. Egan, and William South, Assistant Attorney General, represented respondent, the State of Illinois.
“Claimant, William H. Egan, is the owner of a small farm located approximately one and one-half miles from the Greater Peoria Airport, Peoria, Illinois. On March 14, Lieutenant Lott was flying an F-84F jet aircraft as a member of the Illinois National Guard. According to the Departmental Report, and this appears to be the only proof on this point, Lieutenant Lott allowed his aircraft to ‘stall out’ while turning on the final approach for landing at the Greater Peoria Airport. According to the Departmental Report, the Lieutenant did not maintain sufficient air speed and proper altitude to effect a safe landing at the airport. As a result, the jet aircraft crashed on the property owned by claimaint, causing extensive damage. The items damaged or destroyed, and repairs required are set forth in claimant’s exihibit A, which is attached to his complaint. A real estate agent testified that the property in question was worthless, due to the loss of the aluminum building, approximately 20 by 50 feet in dimension. In general, the amounts claimed were substantiated by the testimony. There might have been a few minor discrepancies. The inconvenience the claimant has sustained, as well as the expense he will incur in collecting his damages, will more than offset any minor discrepancies in the amount of damages.
“Lieutenant Lott, the deceased pilot, as a member of the Illinois National Guard, was an agent of the State. He was negligent in the operation of said aircraft. It cannot be seriously contended that claimant was guilty of contributory negligence. The sole question is one of damages. It is, therefore, recommended that claimant be awarded the sum of $9,444.42.”

Respondent has not denied liability in this case, but has limited itself to the question of damages, and contends that claimant has failed to establish the true measure of loss for each of the items described in the bill of particulars.

The Commissioner, in his report, found that the amounts claimed were substantiated for the most part by the testimony, and that any discrepancies were minor.

From the transcript of the testimony, it appears as though there was direct testimony as to the value of each of the items mentioned in the complaint, and it would appear as though the claimant has furnished adequate proof as to the measure of damages.

“Where the right of recovery exists, the defendant cannot escape liability because the damages are difficult of exact ascertainment. The nature of the inquiry in the instant case is such that it is difficult, if not impossible, to ascertain with mathematical certainty the amount of the defendant in error’s damages, but this difficulty affords no answer to a cause of action, which results from a breach of duty imposed by law. The unliquidated damages growing out of the commission of a tort are seldom susceptible of exact measurement. The rule is, that, while the law will not permit witnesses to speculate or conjecture as to the possible or probable damages, still the best evidence, which the subject will admit, is receivable, and this evidence is often nothing better than the opinions of persons well informed upon the subject under investigation.”
Johnston vs. City of Galva, 316 Ill. 598.

The report of the Commissioner is hereby adopted by this Court, and, an award is, therefore, made to claimant, William H. Egan, in the amount of $9,444.42.


text:
    (No. 4885
    Badger Petroleum Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

    Brown, Connolly and Paddock, Attorneys for Claimant.
    William G. Clark, Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Badger Petroleum Company, A Corporation, filed its amended complaint on November 2, 1959 against the State of Illinois seeking to recover the sum of $411.45 for the alleged negligence of the driver of a snowplow, who was an employee of the State.

The matter was heard by Commissioner George W. Presbrey, and his report is set forth in length herewith:

COMMISSIONER'S REPORT
“The above entitled cause was heard oil February 4, 1960 at Rockford, Illinois. Robert J. Oliver represented claimant, the Badger Petroleum Company, and Samuel Doy, Assistant Attorney General, represented respondent.
“On March 17, 1959, at approximately 12:15 A.M., a gas transport truck, belonging to the Badger Petroleum Company, and being driven by Walter Trueheart, was traveling south on highway No. 26, approximately one mile south of Forreston, Illinois. Route No. 26 is a two-lane highway. The road was icy, and while it had stopped snowing, the snow was blowing at the time.
“It appears that the truck driver noticed a snowplow being operated by an agent of respondent approaching from the south approximately 700 or 800 feet away. As the driver could not tell whether the road was open, he pulled his truck off the road onto the shoulder to wait for the snowplow to pass. It was plowing the east side of the road.
“As it reached the spot where the gas buck was stopped, the plow skidded across the road into the southbound lane, and struck the motor vehicle of claimant then on the shoulder of the road. The truck driver noticed the plow skidding toward him. He attempted to pull ahead and into the ditch. However, he was unable to avoid the plow.
“The driver of the snowplow, Joel A. Toomsen, stated his truck skidded into the southbound lane because the snow had drifted at this point, and was packed and deeper than in most spots. Toomsen stated that he was aware of the drifting condition at this particular spot, as he had just previously plowed the southbound lane of this highway, and knew of the drift. When his plow hit the packed snow, the blade grabbed, and the truck skidded out of control into the truck driven by Mr. Trueheart.
“The defense of respondent appears to be based upon the fact that there was nothing about this particular snowdrift or portion of highway that would warrant, or in any way indicate to the snowplow operator that the blade would grab and throw the truck out of control. The testimony of the truck driver on this particular point starts at page 50 of the transcript, and continues through page 52.
“It appears that the truck driver had insurance to cover him as a driver of a State truck.
"It would appear that the agent of claimant was free of contributory negligence. His truck was not on the highway at the time of the accident, but was parked on the shoulder to allow the snowplow in question to proceed without interruption.
“In the opinion of this Commissioner, the agent of respondent was guilty of negligence. In passing a motor vehicle on the highway, the snowplow operator was under a duty to operate his vehicle in such a manner as to avoid colliding with other vehicular traffic on the highway. The driver of the snowplow, in passing the parked vehicle of claimant, should have reduced the speed of the snowplow, so that he could safely pass vehicular traffic in the opposite lane.
“Claimant offered petitioner’s exhibit No. 1 for identification into evidence. This exhibit is an estimate, and is not a paid repair bill. The attorney for respondent objected to the introduction of said exhibit. His objection was sustained, but the exhibit was allowed to stand as a rejected exhibit, so that the parties to said cause could argue this point in their briefs. A repair bill marked ‘paid’ can be introduced for the purpose of showing the reasonableness of tire cost of the repairs. However, an estimate is not proper for this purpose. Respondent’s attorney points out the distinctions in his brief and argument.
“Claimant did introduce certain paid bills as exhibits. The exhibit showing the value of the tires, which were damaged in the accident, is questionable as to the probative value. However, if $80.00 is allowed for this amount, together with the paid repair bills, which are in evidence, the total amount of claimant’s damages would be in the sum of $377.95. It is recommended by the Commissioner that claimant be allowed the sum of $377.95 as the measure of its damages.”

It is apparent from the report of the Commissioner that Walter Trueheart, the driver of claimant’s truck, was entirely free from any fault.

Respondent contends that its driver, Joel A. To orasen, was plowing the road at a reasonable speed of 15 miles per hour, and, when the blade grabbed the packed snow and skidded out of control, it was in effect an unavoidable accident, and that, therefore, the State was not guilty of negligence.

The driving of a snowplow at a speed of 15 miles per hour may be entirely proper on an open road. However, when the driver saw the truck parked on the shoulder of the road, he was duty bound to slow his vehicle down to the point where he could control it in the event of an emergency. The Court, therefore, finds that the driver of the snowplow did not use reasonable care under the facts of this case.

As to the proof of damages, the Court agrees with respondent that an estimate is not proper, nor is it the best evidence of proof of damages.

The Commissioner, however, has considered these matters, and has concluded that the claimant is entitled to an award in the amount of $377.95.

An award is, therefore, made to claimant in the sum of $377.95.


text:
    (No. 4903
    John Roberts, a minor, by Margaret Roberts, his Mother and next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

    Fred Lambruschi, Attorney for Claimant.
    Grenville Beardsley, Attorney General; Lester Slott and Harold A. Cowen, Assistant Attorneys General, for Respondent.
   Wham, J.

The complaint in this case was filed by John Roberts, A Minor, by Mary Roberts his mother and next friend, to recover damages by reason of personal injuries sustained by said minor when the automobile in which he was riding as a guest passenger was struck by a motor vehicle operated by an employee of the State of Illinois.

Respondent filed a motion to dismiss the complaint on the ground that no notice was served upon the Attorney General and the Clerk of the Court of Claims within six months from the date of the alleged injury, as required by Chap. 37, Sec. 439, Subsec. 22-1, 1959 Ill. Rev. Stats.

Although this Court in the case of Jacob G. Gossar vs. State of Illinois, No. 4828, passed upon a similar motion, wherein claimant was an adult, we have not had occasion to pass on a case, such as this, wherein claimant is a minor.

This statute is, for all practical purposes, identical with the notice statute applying to municipalities set forth in Chap. 24, Sec. 1-11, Ill. Rev. Stats., which has been construed in several cases involving minor plaintiffs.

In the case of Doerr vs. City of Freeport, 239 Ill. App. 560, the Court held that a minor 12 years of age was not within the purview of the statute, and stated at pages 563-565 as follows:

“This statute was construed in Langguth vs. Village of Glencoe, 253 Ill. 505, and it was there held that the filing of this notice was an essential element of the plaintiff’s cause of action, which must be averred and proved before a recovery could be had, but in the case of McDonald vs. City of Spring Valley, 285 Ill. 52, in holding that this statute did not apply to an infant seven years of age, the court said:
‘At common law an infant within seven years of age could not be convicted on a criminal charge, as he was conclusively presumed not to be capable of committing a crime, and between the ages of seven and fourteen he was still presumed to be incapable, but between those ages this presumption might be overcome by proof. These rules of law are based upon the well-known fact of the incapacity of children of tender years, and they are not held to the same accountability as are adults. The recognition, by the law, of the status of infants, and of their exemption up to a certain age from liability under the law, is so well known that it must be presumed that the legislature, in enacting such a statute as the one under consideration, did not intend by the general language used to include within its provisions a class of persons, which the law has universally recognized to be utterly devoid of responsibility. * * * The act is meant to apply only to those who are mentally and physically capable of comprehending and complying with its terms...... It cannot be controverted that a minor is incapable of appointing an agent, or an attorney, and it cannot be successfully contended that the statute can be complied with by the filing of the required notice by the father, mother or some friend of the child as next friend. While the parent of a minor is its natural guardian, he cannot be said to be the agent or attorney for the child. A child with a meritorious cause of action, but incapable of initiating any proceeding for its enforcement, will not be left to the whim or mercy of some self-constituted next friend to enforce its rights.’
“The declaration in the instant case was filed on January 11, 1923, and it fully described plaintiff’s injuries, and alleged that he was a minor, twelve years of age. Under the reasoning of the McDonald case, supra, we are of the opinion that appellee was relieved from alleging in his declaration or proving upon the trial a compliance with the statutory provisions with reference to notice.”

This reasoning is sound, and should also apply to the statute involved herein.

Moreover, in construing the legislative intent in the enactment of this statute, we have read it in conjunction with Par. 439.22 of Chap. 37, 1959 Ill. Rev. Stats., which in part is as follows:

“Except as provided in sub-section F of Section 8 of this Act every claim, other than a claim arising out of a contract or a claim arising under subsection C of Section 8 of this Act, cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within 2 years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues 2 years from the time the disability ceases.”

It appears to us that, inasmuch as the Legislature exempted infants from the two year limitation requirement governing the filing of complaints until they had reached their majority, surely the Legislature intended to exempt infants from the requirement of giving a six months notice of an action’s accrual. A construction to the contrary would lead to the anomalous result of saving to the infant only the right to file, after two years, a complaint based on a cause of action already barred by non-action of the infant, who had no legal capacity to act or refrain from acting in connection with his claim for damages.

We do not believe the Legislature intended such a result, and, we, therefore, hold that the notice statute involved herein does not apply to a minor.

The motion of respondent is, therefore, denied.


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    (No. 4929
    J. P. Miller Artesian Well Co., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

      Bergstrom, Evans and Nelson, Attorneys for Claimant.
    William G. Clark, Attorney General, for Respond-dent.
   Tolson, C. J.

On August 8, 1960, claimant, J. P. Miller Artesian Well Company, A Corporation, filed its complaint seeking an award in the amount of $6,119.70 for services performed at the Honor Farm of the Illinois State Penitentiary, Joliet, Illinois.

From the Commissioner’s Report, it appears that there are no controverted facts in this case, and they may be summarized as follows:

Claimant was called upon to make repairs to a pump on the Honor Farm. Upon examination, it was discovered that the bearings and shafting whip were out at the bottom of the well, and also that the bowl assembly was destroyed.

Claimant completed the work, and submitted a statement in the amount of $6,119.70, which was composed of two items, labor $1,803.00 and materials $4,316.70.

The Departmental Report filed herein indicates that the Division of Architecture and Engineering found the bill to be fair and equitable, but that the Department of Public Works and Buildings disagreed with the amount of the statement.

' At a later date, the differences were resolved, and the Department of Safety was directed to pay the bill. At this later date, it was then discovered that the appropriation had lapsed, and it was impossible to honor the claim.

This Court has repeatedly held that, where the evidence shows that the only reason a claim was not paid was .because the appropriation had lapsed prior to its presentment for payment, an award will be made. (Material Service Corporation vs. State of Illinois, 22 C.C.R. 735; University of Chicago vs. State of Illinois, 22 C.C.R. 683.)

Commissioner Herbert G. Immenhausen heard the evidence in the case. He found that claimant had proved its claim for time and material, and recommended an award.

An award is, therefore, made to claimant, J. P. Miller Artesian Well Co., A Corporation, in the amount of $6,119.70.


text:
    (No. 4752
    Ted E. Warren, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 14, 1961.

    Ralph W. Harris, Attorney for Claimant.
    William L. Guild, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

This is an action brought by claimant, Ted E. Warren, against respondent, State of Illinois, to recover $5,000.00 in damages for personal injuries, which he sustained at or about the hour of 11:00 P.M. on October 29, 1955.

The record consists of the following:

1. Complaint

2. Departmental Report

3. Transcript of evidence

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

5. Order of the Chief Justice denying the motion of claimant for leave to waive the filing of brief and argument

6. Brief and argument of claimant

7. Statement, brief and argument of respondent

8. Original transcript of evidence taken on September 10, 1959

9. Abstract of evidence

10. Supplementary brief and argument

11. Commissioner’s Report

Claimant charges that on said date State police officers, Sgts. Herbert Bramlet, L. E. Lezynski and Guthrie Alexander, were patrolling State Bond Issue No. 13, during which time they apprehended him near the Gallatin County Line in Saline County, Illinois. He was placed under arrest, and charged with driving while under the influence of intoxicating liquor, reckless driving, and with having a bottle with a broken seal in his possession and in his automobile.

He was taken to the Saline County jail in the City of Harrisburg, Illinois, at which time he was assaulted by officers Lezynski and Bramlet, while being placed in the jail, i.e., by officer Lezynski shoving and throwing claimant through the jail door, causing him to be overbalanced, and while grabbing for the door to keep from falling, and simultaneously therewith officer Bramlet slammed the cell door catching claimant’s left thumb in the door, and severing it at the first phalanx.

This is an action sounding in tort.

Respondent proceeded to trial under a general denial of the facts set forth in the complaint pursuant to Bule 11 of this Court.

In its brief and argument, respondent contends that, • first, there is no evidence of any negligence by the officers, agents or employees of respondent; second, that the injury to claimant was the result of his own carelessness and unlawful acts; third, that under the statutory jurisdiction of this Court no liability exists for the acts of State highway policemen; fourth, that the acts upon which this claim is based were performed for the sheriff of Saline County, and not as agents or in behalf of the State of Illinois.

The three police officers testified that on the evening in question they saw claimant’s automobile, and noticed that his car was weaving back and forth across the center line, and on one occasion off onto the shoulder of the road. Upon stopping him and asking him to get out of his car, they noticed that he was unsteady, and it was necessary for him to lean up against his automobile to support himself. He was driven to the sheriff’s office in Saline County by two of the officers, the other officer driving his automobile to Harrisburg, Illinois.

The officers further testified they observed claimant walking from the automobile into the sheriff’s office, that he staggered and was unsteady, that there was a strong odor of alcohol, and that there was a bottle of gin in his car, which was half gone. He was observed not only by the police officers in the sheriff’s office, but by the deputy sheriff, referred to as the turnkey, being Jeff Stricklin, who testified that claimant was staggering, unsteady on his feet, and talking incoherently with a thick tongue. All four of these witnesses expressed an opinion that claimant was intoxicated.

Claimant offered the testimony of the doctor, who cared for him at the Harrisburg Hospital, and who was unable to testify as to the intoxication of claimant at the hospital. Also, a patient in the hospital testified that, in his opinion, when he saw claimant in the hospital in the ward in which he was taken after midnight, he was not intoxicated.

There is testimony to the effect that, when the personal effects were being taken from claimant in the jail, claimant objected to his billfold being taken, and refused to voluntarily give it up. It was necessary that officer Lezynski count the money, and note the contents of personal property of claimant on the envelope in which his personal effects were to be kept.

Claimant refused to go into the jail, so that it was necessary for officer Lezynski to pick him up bodily, by getting behind him, putting his arms around his body, and pinning his arms to his side, while the deputy sheriff opened the door, so that officer Lezynski could put him inside. All during this time, claimant was resisting, and attempting to brace his feet to keep from being put into the jail. Before the cell door could be closed, claimant started to come out, and was pushed or held inside of the door, and, with the aid of the deputy sheriff, the door was closed. Evidently at that time claimant placed his hand in the door, and his thumb was caught.

In regard to the incident, the officers claimed that they knew nothing about any injury to the thumb of claimant until one of the inmates said that his thumb was injured, and, due to the fact that there was heavy meshing on the door, it was hard to see through the cell block door. They viewed claimant’s thumb through an opening in the door used for the purpose of passing food through to the inmates, and it appeared that his thumb nail was torn and bleeding very slightly.

Claimant is further making an issue of the fact that, at the time of the subsequent hearing before the Commissioner, the State’s Attorney of Saline County dismissed all of the charges with the exception of the reckless driving charge, and, upon the plea of guilty, assessed a fine, which was suspended.

Counsel for claimant is also relying upon the fact that the other officers should have assisted officer Lezynski in placing claimant in the cell or cell block; and, the fact that he was injured is automatic as to the State’s responsibility and liability that damages should be awarded to claimant under the Court of Claims Act, namely, Sec. 8 (C), Ill. Rev. Stats., 1957, Chap. 37, 439.8 (C).

Two cases are also cited under the points and authorities, namely, Erickson vs. Fitzgerald, 342 Ill. App. 223, Both vs. Collins, 339 Ill. App. 437, and 29 I.L.P. 100 (Sec. 61). The cases referred to relate to the responsibility of police officers in performing their governmental functions.

We could dispose of one of the contentions of respondent, and the contentions of claimant, that, if the police officers used more force than was necessary in apprehending and placing claimant behind bars, and were negligent in the handling of claimant, then, in our opinion, the State would be liable, and claimant would be entitled to damages.

As to respondent’s contention that the State of Illinois is not liable for the acts of officers, agents or employees of political subdivisions or municipal corporations, that is a correct statement of the law, and we have so held. However, this case is not predicated upon the negligence of any county law enforcing officer, but of the police officers of the State of Illinois, who are its agents.

The State of Illinois, in employing police officers to patrol its highways, does so for the sake of the traveling public, both residents and non-residents of the State, in an attempt to keep its highways free from motorists traveling while under the influence of intoxicating liquor, violating the motor vehicle code, and the operation of an automobile in a maimer, which endangers the life or lives of people traveling thereon.

The police officers in this regard do not have an enviable job, and are only trying to do their duty. They only make arrests where they believe that arrests should be made, and those punished, who have violated laws, which have been passed by our legislature.

It is a grave offense to operate a motor vehicle upon a public highway in an intoxicating condition, because of the hazards which are created thereby.

The officers, in discovering the condition of claimant, had no alternative but to take him into the county jail, remove his personal effects, and place him behind bars until he was in a condition to be released, after furnishing satisfactory bond prior to being tried for the offenses for which he was charged.

His refusing to go into the jail voluntarily was of his own doing. It was necessary for the officer to bodily carry him into the jail, and it was necessary for the officer to keep him from coming out of the jail before the door could be closed.

We appreciate the fact that claimant contends that he was pushed and spun around, and that he grabbed onto the door to keep from falling. However, from the testimony of the witnesses, it appears that he was not shoved hard enough to fall, but that he was attempting to come out of the door, and the deputy sheriff and officer Lezynski were trying to hold him off, and at the last minute claimant stuck his thumb in the door jam, and it was injured in the closing of the door.

Based upon the evidence in this case, we find that the officers did not use any more force than was necessary to place him in the jail, but it was necessary to close the door, and to hold him off while closing the door. Had he not stuck his hand in the door, he would not have been injured.

We feel inclined to follow the same reasoning that we have in any case sounding in tort, which is that the burden would be upon claimant to prove that he did not contribute to his own injury, and that it was the negligence or unlawful assault upon him, which resulted in damages.

It is, therefore, the order of this Court that the claim filed herein be denied.