text:
    (No. 5002
    Mary Louise Walla, as Executor of the Estate of Ollie Lee Arnts, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

      Kahn, Adsit and Arnstein and Parker, Bauer and Parker, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

This is a cause of action for wrongful death brought pursuant to the provisions of the Wrongful Death Act, Chap. 70, Secs. 1 and 2, Ill. Rev. Stats., by claimant, Mary Louise Walla, as Executor of the Estate of Ollie Lee Arnts, deceased, against respondent, State of Illinois, to recover damages for the death of Ollie Lee Arnts resulting from a single car accident on November 12, 1960 at about 5:30 A.M.

In the spring of 1960, the Department of Public Works and Buildings, Division of Highways of the State of Illinois, undertook the reconstruction and relocation of State Route No. 1 about one and one-half miles south of Norris City, White County, Illinois. As part of this project, U.S. Route No. 45, which intersects Illinois Route No. 1 at a point just south of a railroad viaduct south of Norris City, was reconstructed and relocated approximately 1,000 feet to the south of its original location. Work on the project commenced on May 12, 1960, and was completed on October 14, 1960.

In altering the location of U. S. Route No. 45, a paved portion of the old road, approximately 1,000 feet long, was removed, and the direction of the old road altered by the construction of a road connecting old U. S. Route No. 45 with new U. S. Route No. 45. The composition of the connecting road was gravel and crushed rock. The gravel connecting road made a sharp 65 degree turn to the left from the end of the pavement of old U. S. Route No. 45. This turn was regarded as a “relatively sharp curve at high speed driving” by State District Construction Engineer Gamble. Due to a difference in the grade level of the old and new roads, there was a sharp drop-off along the southwest side of the connecting road where the State had constructed a ditch.

The decedent, Ollie Lee Arnts, was driving from Chicago to Harrisburg, Illinois on U. S. Route No. 45 to visit her mother. The decedent had driven this route numerous times, but her last occasion to use this particular route prior to the accident had been in April, 1960, prior to the reconstruction and relocation of U. S. Route No. 45. The accident occurred in the dark, early morning hours of November 12, 1960 when decedent’s automobile ran off the gravel connecting road and over an embankment, and crashed into a bridge abutment.

There is conflicting evidence regarding the number and types of warning signs and devices erected by the State to warn motorists of the construction area and the gravel connecting road. It appears from the evidence, however, that there was a movable horse-type barricade across the north or right half of the old road approximately 2,100 feet from the beginning of the gravel connecting road. Attached to the barricade was a sign which read: ‘ ‘ Closed - Open for Residents and Contractors Only”. There were no flares placed around the barricade for illumination at night. Between the barricade and the beginning of the gravel connecting road was a sign with an arrow indicating a left turn ahead with a small “15 M.P.H.” sign posted below it.

It appears from the evidence that this gravel connecting road, which had originally been constructed to enable traffic to move through the construction area during construction of the new road, continued to be used by the public after construction had been completed. It is clear from the evidence that the State of Illinois was aware of this continued use of the gravel connecting road by the public. There was documentary evidence, as well as testimony, that a number of similar accidents had occurred along this gravel connecting road during the 45 day period preceding the accident in question.

There were apparently no eye witnesses to the accident, and both Mary Louise Walla, Executor of decedent’s estate, and decedent’s mother testified that decedent’s driving habits were good. Evidence was introduced that decedent had served in the Army during World War II as an ambulance operator, and had received a citation for good driving.

The decedent was a widow, 48 years of age, with no children. She left surviving her a dependent mother, 70 years of age, whose life expectancy was 12.6 years at the time of the accident, and who had been supported by decedent for many years. Evidence was introduced without objection that the loss of support and expenses incurred as a result of this accident amounted to more than $16,000.00.

The law is well settled in this State that the State is not an insurer of the public on its highways. However, when the State is in the process of repairing or constructing a highway it is duty bound to use reasonable care in warning the traveling public of the hazard, which it has voluntarily created. Riggins vs. State of Illinois, 21 C.C.R 434. Respondent in the construction, maintenance and repair of its highways has a duty to use reasonable care and caution to prevent injury or destruction of life and property. Pomprowitz vs. State of Illinois, 16 C.C.R. 230; Hansen vs. State of Illinois, 21 C.C.R. 5.

Evidence to the effect that a number of serious accidents had occurred along this gravel connecting road during the 45 day period preceding the accident in question involving southbound motorists at night is sufficient to indicate that respondent had actual notice of the dangerous condition existing at this point.

There is sufficient evidence to enable this Court to find that the State failed to discharge its duty to protect the traveling public from a hazardous condition created by the State, and concerning which the State had notice, and that the State’s negligence was the proximate cause of the accident, which claimed the life of Ollie Lee Arnts.

The State’s failure to light or illuminate the small barricade it had erected constituted negligence. Pomprowitz vs. State of Illinois, 16 C.C.R. 230; Hansen vs. State of Illinois, 21 C.C.R. 5; Cruger vs. State of Illinois, 20 C.C.R. 138. The posting of a sign indicating a left turn, and a small “15 MPH” sign is not sufficient to constitute performance of the State’s duty to adequately warn of the hazardous condition of the gravel connecting road. Warning signs must give adequate warning of the particular hazard which exists. Bovey vs. State of Illinois, 22 C.C.R. 95; Mammen vs. State of Illinois, 23 C.C.R. 130.

The evidence further discloses that there was no “stop” sign posted at the end of the pavement and the beginning of the gravel connecting road. There was no warning sign to indicate that a gravel road was ahead, or that the road was under repair, or to proceed with caution. The State did nothing to warn motorists of the particular danger about to be encountered. The State erected no restraining posts or fence along the southwest side of the gravel connecting road. The only barricade erected was a small movable horse-type barricade, which extended across one-half of the road, and around which a motorist could easily drive his automobile.

We are further of the opinion that the testimony as to the careful driving habits of the decedent sufficiently substantiates claimant’s allegation that decedent was not guilty of contributory negligence.

An award is, therefore, made to claimant in the amount of $16,000.00.


source: Caselaw Access Project

author: Dove, J.

license: Public Domain

text:
    (No. 5175
    Lena H. Schaab, Claimant, vs. Teachers College Board, Respondent.

      Opinion filed June 28, 1968.

    Laudeman and Rolley, Attorneys for Claimant.
    Dunn, Dunn, Brady, Goebel, Ulbrich and Hayes, Attorneys for Teachers College Board.
   Dove, J.

Claimant, Lena H. Schaab, seeks to recover for personal injuries sustained by claimant resulting from a fall on August 9,1963 about 2:00 P.M. while walking up a flight of steps at the Horton Field House on the campus of Illinois State University at Normal where claimant had gone with her daughter-in-law and two grandchildren to attend the graduation ceremony for her son. Claimant was 75 years of age, and by reason of her fall sustained permanent injuries to her right arm.

Claimant testified as follows: “I went there that afternoon with my daughter-in-law because her husband, my son, was going to graduate for his Masters. The steps were cement with little pebbles laying on them. I was up to the last one. My son’s wife and her two children were ahead of me. When I reached the last step I fell. I just remember that I was falling forward onto the steps. I did not roll off the steps, but stayed there until they picked me up. I was about in the center of the steps, not on the edge. There were no railings. They put them up later. There were little pebbles there, that is all I remember. The pebbles were on all of the steps. I didn’t collide with anyone else on the steps. The weather was clear, and the steps were dry. I had never been at the Field House or on those steps before. I have fallen a few times before. I have fallen on other occasions in my life time, but there was always something that made me fall. The doctor told me I fell this last time because I didn’t get sufficient blood in my head. He said that the reason I fall once in awhile like that is because the blood doesn’t circulate right. One evening I walked out in the driveway and fell. I don’t know what made me fall. On this particular occasion at the University I didn’t trip on the steps. I didn’t trip over anything.”

Claimant contends, as part of providing safe passage on sidewalks and up and down the steps, railings should have been installed. The evidence discloses that railings were subsequently installed by respondent, but we are of the opinion that there was no duty on the part of respondent to place railings on the steps. We are further of the opinion that the answer to claimant’s fall is evident from her own testimony, as above stated. Claimant testified that she had fallen on other occasions for no apparent reason, and that her doctor had told her that the fall in question occurred “because she did not get sufficient blood to her head.”

For claimant to recover she must prove:

1. That she was in the exercise of due care and caution for her own safety.

2. That the State of Illinois was negligent as charged in the complaint.

3. That the negligence of the State of Illinois was the proximate cause of her injuries.

It is well settled that one who owns or is in control of property is not an insurer of the safety of an invitee, and that this particular rule applies to premises to which the public is invited. Thoele vs. Mazel, 8 Ill. App. 2d 237; Dietz vs. Belleville Co-op Grain Co., 273 Ill. App. 164.

Claimant has failed to sustain the burden of proof, and an award is, therefore, denied.


text:
    (No. 5241
    Tower Communications Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    A. H. Baron and Fred Lane, Attorneys for Claimant.
    William G. Clark, Attorney General; Arthur L. Berman, Special Assistant Attorney General, for Respondent.
   Dove, J.

This cause of action arises out of a contract, dated March 16,1961, between Tower Communication Company and the State of Illinois for the construction of eighteen radio towers at a cost of $99,987.00. Fourteen of the eighteen towers were of such a height as to require warning lights on the top to meet FCC and CAA requirements. In addition to the warning lights, the contract provided that these fourteen towers be equipped with a photo-electric device, which would automatically turn the warning lights on at night and off in the morning.

The dispute in this case centers around the act of the respondent in withholding the sum of $4,890.98 from the contract price for electricity paid for by respondent to operate the warning lights on the fourteen towers during the construction period, October, 1961 to September, 1963. It is claimant’s contention that it was not obligated under the contract to provide the electricity to operate the warning lights during the period in question.

Federal regulations require that, when a tower of the type being constructed pursuant to this contract exceeds a height of one hundred forty-nine feet, it must be equipped with warning lights for the protection of airplanes flying overhead. As the towers in question were erected, proper warning lights were installed, and respondent made arrangements with local utility companies to supply electrical power to operate the warning lights.

The contract provided that all work be completed within one hundred days from the date of the contract. It was not, however, until June, 1962, that work on the towers had progressed to the point where the photoelectric control units could be installed on a permanent basis. At this point the engineer for respondent insisted that the photo-electric device be modified so that the photo-electric cell could be mounted approximately twelve to fifteen feet above the device’s control panel. Claimant immediately advised respondent that the photoelectric unit called for by the contract specifications could not be modified in this manner. Claimant then requested a change order from respondent authorizing claimant to purchase a more expensive photo-electric unit, which could be installed as requested. Though claimant repeated its request for a change order several times, it was not until September 10,1963 that respondent agreed and authorized claimant to purchase the more expensive unit.

Pertinent provisions of the contract in question relating to the duties and obligations of the parties are as follows:

“1. General Conditions of the Contract.
“ARTICLE 2:
Execution, Correlation and Intent of Documents:
It is not intended, however, that materials or work not covered by, or properly inferable from, any heading, branch, class or trade of the specifications shall be supplied, unless distinctly so noted on the drawings. Materials or work described in words which so applied have a well known technical or trade meaning shall be held to refer to such recognized standards.
“ARTICLE 11:
Material, Appliances, Employees:
Unless otherwise stipulated, the contractor shall provide and pay for all materials, labor, water, tools, equipment, light and power necessary for the execution of the work.
“ARTICLE 43:
Protection:
The contractor shall provide and erect all necessary barricades and other protection required by Owner and/or by local laws and ordinances, or local authorities having jurisdiction over same, and shall also protect all walks, curbs, lamp posts, underground conduits, overhead wires, water, sewer, gas mains, etc., until such time as they are taken care of by the respective public service corporations or by the Owner. He shall also provide and maintain all necessary warning lights from twilight to sunrise.
“ARTICLE 47:
Electrical Energy and Lighting:
The general contractor shall make the necessary application, pay for fees and charges, take out all permits and provide and maintain electrical energy from sources other than the building for power and light for all electricity using devices on machinery or lights required for carrying on the work.
Whenever electric light for illumination purposes is found necessary in the progress of the work, this contractor shall provide such lights as may be required to properly execute the work.
“II SUPPLEMENTARY SPECIFICATIONS:
Protection:
1005. This contractor, as a part of this contract, shall provide and erect all planking, fences, bracing, shoring, sheet piling, lights and warning signs necessary for the protection of adjacent property and the public.
“Ill EQUIPMENT
Towers:
2046. Obstruction lighting shall be as specified, for each tower, in Section 5000.
“IV GENERAL WORK —TOWERS
Protection:
3007. The contractor, as part of this contract, shall provide and erect all planking, fences, bracing, shoring, sheet piling, lights and warning signs necessary for the protection of adjacent property and the public.
“V. HIGHWAY RADIO ELECTRICAL WORK
Tower Lighting:
5266. All towers are to be lighted as designated by the latest requirements of the FCC and CAA.”

Claimant’s right to recover depends upon the interpretation and construction of the foregoing contract provisions. Article 47 of the specifications requires claimant to “provide and maintain electrical energy .... for power and light for all electricity using devices on machinery or lights required for carrying on the work.” Article 43 states that the contractor “shall also provide and maintain all necessary warning lights from twilight to sunrise.” Section 5266 states that “all towers are to be lighted as designated by the latest requirements of the FCC and the CAA.” Section 1005 states that the contractor “shall provide and erect all planking, fences, bracing, shoring, sheet piling, lights and warning signs necessary for the protection of adjacent property and the public.”

The purpose of this contract was the construction of eighteen radio towers. The parties to the contract were aware of the fact that, once a tower was constructed to a certain height, electrical energy would have to be supplied to operate the warning lights required by FCC and CAA regulations. Viewing all of the pertinent sections of the contract as a whole, it is the opinion of this Court that the supplying of electrical energy for the operation of the warning lights, which were required by FCC and CAA regulations, was the responsibility of the contractor until the work on the towers was completed.

The evidence in this case indicates that the delay in the final completion of the towers from June, 1962 until September, 1963 was due to the refusal of respondent to authorize claimant to purchase a more expensive photoelectric unit, which could be installed as requested by respondent, while at the same time refusing to allow claimant to install the photo-electric unit called for by the contract specifications. By such action, respondent effectively prevented claimant from completing the towers until September, 1963, when authorization was finally granted claimant to purchase the more expensive photoelectric unit.

It is the opinion of this Court that respondent’s actions in connection with the installation of the photo- • electric units terminated claimant’s responsibility under the contract to provide electrical energy for the warning lights as of June, 1962. The evidence further indicates that $3,977.11 was paid for electrical energy supplied for the warning lights from June, 1962 to September, 1963.

Claimant is hereby awarded the sum of $3,977.11.


author: Pezman, J.

text:
    (No. 5251
    Lester Simmons, a Minor, by Lizzie Whitley, his Mother and Next Friend, and Lizzie Whitley, Individually, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Barish and McHugh, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky and Sheldon Rachman, Assistant Attorneys General, for Respondent.
   Pezman, J.

This is a cause of action brought by claimants against respondent, State of Illinois, for injuries suffered by one Lester Simmons, a Minor, while high jumping at the Fort Massac State Boys ’ Camp at Metropolis, Illinois. Lester Simmons who was seventeen years old at the time of the accident was a ward of the Chairman, Illinois Youth Commission, and was sent to the Fort Massac State Boys ’ Camp in April, 1965.

An average day for the boys at the camp consisted of a work detail, lunch, more work detail, and evening meal about 5:00 P.M. After the evening meal the boys were free to pursue whatever recreational activities they desired so long as they remained within the limits of the camp. One of the recreational facilities at the camp was a high jump area. The high jump consisted of two standards with a bamboo crossbar and a landing area. The landing area was composed of 25 or 30 burlap bags filled with sawdust and woodehips. The bags were placed in a square formation, and lapped to provide a landing area for the jumpers.

On May 18, 1965, at about 7:00 P.M., claimant, Lester Simmons, went to the high jump area, where he and several other boys engaged in high jumping. Franklin D. Williams, Illinois Youth Commission Counselor, and Lawrence Quint, a Supervisor at the camp, were near the high jump area, and watching the boys high jumping. On his third jump Lester Simmons injured his leg. Subsequent x-rays revealed a fractured tibia and fibula of the right leg.

Claimant testified that there was a space between the bags comprising the landing area, and that, when he landed after his third jump, his foot slipped between two bags causing him to fall and break his leg.

The high jump area had been constructed by Ronald Upchurch, Recreation Co-ordinator for the Illinois Youth Commission of the State of Illinois. Mr. Upchurch testified that he had jumped in the high jump area, and found the sawdust bags to be a decent landing place. Franklin Williams, a Counselor, testified that he had jumped the high jump also, and found that the bags were neither too soft nor too hard.

Subject to the objection of respondent, a portion of the Handbook of the Amateur Athletic Union of the United States setting forth specifications for landing areas for a high jump, and a copy of a portion of the National Federation of State High Schools Athletic Associations’ specifications for a landing pit for a high jump were admitted into evidence. Ronald Upchurch testified that the Illinois Youth Commission was not bound to follow the recommendations of the Amateur Athletic Union or the National Federation of State High Schools Athletic Associations because the Commission was not a member of either organization.

Joshua Johnson, Administrative Assistant to the Chairman of the Illinois Youth Commission and Superintendent of Forestry Camps, was called as an expert witness by respondent. Johnson’s qualifications included long experience in professional baseball, semi-professional football and basketball. He testified that the Illinois Youth Commission was free to make its own rules, and set its own standards regarding the construction of athletic facilities. Johnson also testified that the high jump landing area constructed by Ronald Upchurch was reasonably safe.

At the time of the accident claimant, Lester Simmons, wlas five feet eleven inches tall and weighed 215 pounds. Arthur Benner who had charge of the camp at the time of the accident testified that two days before the accident he advised claimant not to jump. He testified he told claimant he was too heavy for high jumping, and that claimant was liable to break a leg.. He testified that claimant replied that he hoped to break a leg so that he could sue the State and get some money, and not have to work for it. Claimant denied having made such a statement. Lawrence Quint, an employee of the camp, testified that he also had told the claimant he was too heavy for high jumping.

At the time of the accident no employee of the camp was directing the high jumping. Quint and Williams were nearby, but their purpose was to insure discipline rather than direction of the high jumping.

Claimant contends that respondent was negligent in constructing the landing area for the high jump, and that he was permanently injured as a result of respondent’s negligence. He further testified that he was unable to work because of the pain he experienced as a result of the injury.

The law in the State of Illinois is clear that, in order for a claimant in a tort action to recover damages against the State of Illinois, he must prove that the State of Illinois was negligent, that such negligence was the proximate cause of the injury, and that claimant was in the exercise of due care and caution for his own safety. McNary vs. State of Illinois, 22 C.C.R. 328, 334; Bloom vs. State of Illinois, 22 C.C.R. 582, 585. Respondent owed claimant a duty of ordinary care; such care as a reasonably prudent man would exercise under like circumstances. Under the facts of this case, respondent owned claimant the duty of providing reasonably safe high jump facilities.

Ronald Upchurch testified that the landing area for the high jump was reasonably safe. His opinion was supported by the testimony of Joshua Johnson, a well qualified expert in athletics. It is the opinion of this Court that the testimony of Upchurch and Johnson deserve considerable weight.

The evidence indicates that claimant was warned by both Arthur Benner and Lawrence Quint that he was too heavy to engage in high jumping. Claimant chose to disregard the warnings and was subsequently injured. It is the opinion of this Court that respondent exercised such care as a reasonable and prudent man would exercise in like circumstances. Claimant has failed to sustain his burden of proof that respondent was negligent in constructing the high jump landing area.

It is the further opinion of this Court that, if it conceded for the sake of argument that respondent did not exercise the required degree of care, the evidence shows that claimant was not in the exercise of due care and caution for his own safety at the time of the accident. Illinois law requires a minor over the age of seven years to exercise that degree of care, which a reasonably careful person of the same age, capacity, intelligence and experience would exercise under the same or similar circumstances. Wolf vs. Budzyn, 305 Ill. App. 603; Hartnett vs. Boston Store of Chicago, 265 Ill. 331.

Claimant testified that he jumped twice just before the jump, which resulted in his injury. If so, he must have had knowledge, or should have known the condition of the high jump landing area. If there were spaces between the bags as claimant contends, he should have been aware of that fact, and the possible consequences of jumping into such an area. Claimant was not required to high jump. He was participating in a volunteer recreational program, and did so of his own free choice.

It is the opinion of this Court that claimant, in attempting to high jump for the third time after having observed the condition of the landing area and after having been warned not to jump, was not exercising that degree of due care and caution, which a reasonably prudent person of the same age, capacity, intelligence and experience would exercise under the same or similar circumstances.

The claim is denied.


text:
    (No. 5449
    Addressograph Multigraph Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Addressograph Multigraph Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Addressograph Multigraph Corporation, filed its complaint against respondent for the sum of $64.80 for services rendered the Illinois Department of Labor.

A stipulation was entered into by claimant and respondent as follows:

“That claimant, Addressograph Multigraph Corporation, had completed the work as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of Sixty-four Dollars and Eighty Cents ($64.80).
“That, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennium appropriation.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof had occurred.
“That upon the foregoing agreed case filed herein the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Addressograph Multigraph Corporation, is thereby awarded the sum of $64.80.


text:
    (No. 5450
    Pheasant Run, Inc., A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Spencer and Bishop, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Pheasant Run, Inc., a Delaware Corporation, filed its complaint against respondent for the sum of $67.70 for services rendered the Illinois Youth Commission.

A stipulation was entered into by claimant and respondent as follows:

“That services were rendered to respondent at the special instance and request of the Illinois Youth Commission.
“That the statements attached to the complaint as exhibit A are due and owing, namely Sixty-seven Dollars and Seventy Cents ($67.70).
“That, as a result of delay in billing, payment was not made prior to the closing of the biennium appropriation.
“That no assignment or transfer of the claim has been made.
“That there is rightfully due to claimant the sum of Sixty-seven Dollars and Seventy Cents ($67.70).
“That upon the foregoing agreed case filed herein, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved up upon the trial of said issue.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Pheasant Bun, Inc., is thereby awarded the sum of $67.70.


text:
    (No. 5452
    Raymond S. Blunt and Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Noble and Brown, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Raymond S. Blunt and Company, filed its complaint against respondent, State of Illinois, for the sum of $1,520.00 for services rendered the Department of Financial Institutions.

A stipulation was entered into by claimant and respondent as follows:

“That services were rendered to respondent at the special instance and request of the Department of Financial Institutions.
“That the statements attached to the complaint as exhibit A are due and owing, namely Fifteen Hundred and Twenty Dollars ($1,520.00).
“That, as a result of delay in billing, payment was not made prior to the closing of the biennium appropriation.
“That no assignment or transfer of the claim has been made.
“That there is rightfully due to claimant the sum of Fifteen Hundred and Twenty Dollars ($1,520.00).
“That upon the foregoing agreed case filed herein the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved up upon the trial of said issue.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Baymond S. Blunt and Company, is thereby awarded the sum of $1,520.00.


text:
    (No. 5458
    Holy Cross Hospital, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Holy Cross Hospital, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Holy Cross Hospital, filed its complaint against respondent for the sum of $167.35, for materials and services rendered the Department of Children and Family Services.

A stipulation was entered into by claimant and respondent as follows:

“The report of the Department of Children and Family Services, dated February 8, 1968, (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.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $167.35.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Holy Cross Hospital, is thereby awarded tht sum of $167.35.


author: Perlin, C.J.

text:
    (No. 5462
    Kaiser Supply, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Kaiser Supply, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, Kaiser Supply, seeks the sum of $167.00 for materials furnished to the office of the Secretary of State. A Departmental Report from the Supervisor of Buildings and Grounds states that the materials were ordered and delivered. The parties have stipulated that there are no disputed questions of fact, and that the claims arise by reason of a lapsed appropriation.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R. 302; Gilbert-Hodgman, Inc. vs. State of Illinois, 24 C.C.R. 509. It appears that all the qualifications have been met in the instant case.

Claimant is hereby awarded the sum of $167.00.


text:
    (No. 5469
    La Salle Extension University, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    La Salle Extension University, Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, LaSalle Extension University, seeks payment in the sum of $60.00 for services and materials rendered to the Board of Vocational Education and Behabilitation for a correspondence course for one Beatrice J. Tinsley. The parties have stipulated that, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennium appropriation, and that the sum requested is lawfully due claimant.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R. 302; Gilbert-Hodgman, Inc. vs. State of Illinois, 24 C.C.R. 509. It appears that all the qualifications have been met in the instant case.

Claimant is hereby awarded the sum of $60.00.


text:
    (No. 5473
    Shell Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Shell Oil Company, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks payment of the sum of $116.60 for aviation fuel purchased by the Department of Public Safety (Division of State Highway Police). The parties have stipulated that the amount claimed is due and owing to claimant. It appears from the record that there are no disputed questions of fact, and that the claim arises by reason of a lapsed appropriation.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R. 302; Gilbert-Hodgman, Inc. vs. State of Illinois, 24 C.C.R. 509. All the requirements have been met in the instant case.

Claimant is hereby awarded the sum of $116.60.


text:
    (No. 5476
    Xerox Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Xerox Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Bespondent.
   Dove, J.

Claimant, Xerox Corporation, filed its complaint against respondent for the sum of $71.52 for materials and services rendered the Department of Public Aid.

A stipulation was entered into by claimant and respondent as follows:

“That equipment was delivered to respondent at the special instance and request of the Department of Public Aid.
“That the statements attached to the complaint as exhibit A are due and owing in the sum of Seventy-one Dollars and Fifty-two Cents ($71.52).
“That no assignment or transfer of the claim has been made.
“That there is rightfully due to claimant the sum of Seventy-one Dollars and Fifty-two Cents ($71.52).
“That upon the foregoing agreed case filed herein the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved up upon the trial of said issue.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Xerox Corporation, is thereby awarded the sum of $71.52.


text:
    (No. 5479
    The Medical Group, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    The Medical Group, Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, The Medical Group, seeks judgment in the sum of $235.00, for services furnished to one Pat Znidarsich, including professional services, x-ray and laboratory facilities, from September 29, 1966 to March 31, 1967. The Department of Children and Family Services confirmed that the medical services were rendered to Miss Znidarsich at the request of the agency, and that the sole reason for nonpayment was that the medical statements were not received in time to process before the end of the 74th biennium.

The parties have stipulated that the amount claimed herein is “rightfully due, and would have been paid had said claim been filed prior to the close of the biennium and the transfer of funds to the General Revenue fund. ’ ’

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R. 302; Gilbert-Hodgman, Inc. vs. State of Illinois, 24 C.C.R. 509. It appears from that record that all of the qualifications have been met in the instant case.

Claimant is hereby awarded the sum of $235.00.


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    (No. 5486
    The Hope School, Incorporated, A Not-For-Profit Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

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

Claimant, The Hope School, Inc., a Not-for-Profit Corporation, filed its claim against respondent for the sum of $600.83 for care of Bonnie Ferguson, a blind person, who was being cared for by the Department of Mental Health, Division of Mental Eetardation Services.

A Departmental Eeport was filed, which stated in part as follows:

“It is true that there is due to The Hope School the sum of $600.83 for the care of Bonnie Ferguson, which is correctly revealed in exhibit B of the filed complaint.
“Since the sum of $600.83, which is due The Hope School, was incurred prior to June 30, 1967, or in the 74th Biennium, the Illinois Department of Mental Health, Division of Mental Retardation Services, could not authorize payment of such funds to The Hope School out of 75th biennium appropriations.”

Subsequently a stipulation was entered into by claimant and respondent as follows:

“The report of the Department of Mental Health dated March 28, 1968 (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.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $600.83.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, The Hope School, Inc., is thereby awarded the sum of $600.83.


text:
    (No. 5488
    Lewis College, Lockport, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    Dunn, Stefanich, McGarry and Kennedy, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Lewis College, Lockport, Illinois, seeks to recover from respondent the sum of $460.00 for tuition, books and supplies furnished one William A. Loehrer.

A Departmental Report, dated January 17, 1968, was filed with the Court of Claims as exhibit C. Subsequently a stipulation by and between claimant and respondent was filed herein on the 24th day of April, 1968.

The stipulation sets forth the following:

“That the claimant, Lewis College, Lockport, Illinois, had enrolled one William A. Loehrer, 194-207, in its college of studies, and that the tuition for the period of February 6, 1967 through May 26, 1967 is rightfully due claimant herein.
“That the sum so due is Four Hundred Sixty Dollars and No Cents ($460.00).
“That, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennium appropriation.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof had occurred.
“That upon the foregoing agreed case filed herein, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Lewis College, Lockport, Illinois, is thereby awarded the sum of $460.00.


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    (No. 5497
    St. Louis Children's Hospital, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1968.

    St. Louis Children's Hospital, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks payment of the sum of $200.25 for services rendered at the request of the East St. Louis Regional Office of the Division of Child Welfare, Department of Children and Family Services. The parties have stipulated that the sum requested is due and owing to claimant. It appears from the statement of fact that the reason for nonpayment of the hospital bill was that the bill was misplaced, and not discovered before funds for payment thereof lapsed on September 30, 1967.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R. 302; Gilbert-Hodgman, Inc. vs. State of Illinois, 24 C.C.R. 509. The record shows that all the qualifications have been met in the instant case.

Claimant is hereby awarded the sum of $200.25.


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    (No. 5136
    Essau Martin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    Arthur J. O’Donnell, Attorney for Claimant.
    William G. Clark, Attorney General; Philip J. Rook and Daniel Kadjan, Assistant Attorneys General, for Respondent.
   Dove, J.

This is a cause of action brought by claimant against respondent, State of Illinois, for damages under Sec. 8C of the act creating the Court of Claims, which act provides that the Court of Claims shall have jurisdiction to hear and determine:

All claims against the State for time unjustly served in prisons of this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, that the Court shall make no award in excess of the following amounts: For imprisonment of five years or less, not more than $15,000.00; for imprisonment of fourteen years or less, but more than five years, not more than $30,000.00; for imprisonment of over fourteen years, not more than $35,000.00; and, provided further, the Court shall fix attorneys fees not to exceed 25% of the award granted.

Claimant, Essau Martin, was arrested on August 17,1959 by police officers of the City of Chicago, and held in custody without bail on the charge of murder of one Eula Lloyd. On October 20, 1959, a true bill of indictment was returned charging claimant with the murder of Eula Lloyd, and the cause was tried without a jury in March of 1960. On March 23, 1960, a finding of guilty was rendered to the charges contained in the indictment. Claimant was sentenced to the Illinois State Penitentiary for a term of 99 years. A timely Writ of Error was filed with the Supreme Court of Illinois, and the judgment of the Criminal Court of Cook County was reversed, and claimant was released from prison on March 2, 1963.

On August 17, 1959, Essau Martin lived at 6643 Wabash Avenue, Chicago, Illinois, with his wife and five children. He was 24 years old, and employed at the Argo Refinery, Argo, Illinois, earning approximately $100.00 per week. Bula Lloyd was claimant’s sister-in-law. She was separated from her husband, and lived with an aunt, Beatrice Thomas, at 741 West 59th Street, Chicago, Illinois.

A few days prior to August 17, 1959, Bula Lloyd went to claimant’s home, and asked him if he would drive her to look at an apartment she wanted to rent. They went to an address at or near 61st and Yale Streets, and following that they drove around and stopped at a liquor store at 103rd and Indianapolis Boulevard where claimant purchased a bottle of liquor and six cans of beer. They both drank the liquor, and drove to 31st Street and the Lake where they parked and had sexual intercouse on two occasions. Sometime around midnight they drove home, parked a block from claimant’s house, and both fell asleep in the car. At daybreak claimant awoke, and Bula Lloyd was gone. Claimant worked that day, and did not see Eula Lloyd until Sunday evening when she returned to his house, and asked if he would drive her to the Damen Avenue Welfare Office on Monday morning. Eula Lloyd returned Monday morning, and she and claimant proceeded to her apartment where she was to change clothes for the trip downtown. On the way they stopped and purchased a half pint of gin and a quart of beer.

Claimant and Eula Lloyd arrived at her apartment at about 8:30 in the morning, and commenced to enter into a drinking and sex orgy. About 6:20 that evening, August 17, 1959, Beatrice Thomas, Eula Lloyd’s aunt, came into the apartment. She found the decedent, Eula Lloyd, lying in a bed, clothed only in a half slip, and bleeding heavily from the vagina, while the claimant fully dressed, except for his shirt, was “passed out” on the bedroom floor. The aunt summoned a police ambulance to take the decedent to the hospital. Her death occurred the following day, and, according to the testimony of the pathologist who performed an autopsy, death was caused by Boeck’s Sarcoidosis of the lungs, liver and spleen, contributed to and aggravated by lacerations of the anus and rectum, which resulted in an infection of decedent’s belly.

At claimant’s first trial on the criminal charge, there was introduced into evidence a statement of defendant given at the time of his arrest to the effect that claimant and Eula Lloyd had engaged in a “savage”, “wild” and “wicked” affair, and that he had “just got evil” while drinking and engaging in sex play with the decedent, and had put his hand into her vagina. At the hearing conducted in connection with this cause, claimant stated he did not place his hand in the decedent’s vagina, nor did he place his finger, hand or any blunt instrument in the decedent’s anus.

Dr. Joseph E. Campbell was called as a witness on behalf of claimant. He stated that he was a forensic pathologist, and that he performed an autopsy on the body of Eula Lloyd. His examination revealed tears extending into the rectum, which resulted in tearing of the tissues surrounding the rectum with bleeding and infection extending throughout decedent’s belly. In addition, there was an acute infection and tearing or hemorrage of the rectum with extension of the infection throughout the belly cavity. Smears of the mouth, vagina and rectum were examined, and sperm were found in the smears of the mouth and vagina. He stated that Boeck’s Sarcoidosis is a progressive disease, and can result in death. In his opinion, the cause of death was due to Boeck’s Sarcoidosis, contributed and aggravated by the tears of the anus and rectum, which had caused an infection of the belly. The infection in the belly was not protracted. It was an acute infection of less than one or two days duration. The pathologist testified that the lacerations of the rectum and anus could not have resulted from a fall, but could have resulted from acts of sexual intercouse per anus. The pathologist testified that, but for the tears of the anus and the rectum introducing infection into the belly cavity, Eula Lloyd would not have died as soon as she did. In his opinion the injury to the anus and rectum unquestionably caused Eula Lloyd’s death. He further stated that, in his opinion, Eula Lloyd was not in the midst of her menstruation.

Thomas Cunningham was called as a witness on behalf of respondent, and testified that on August 17, 1959 he was a police officer of the City of Chicago, and was a witness to certain statements made by claimant to the effect that he had inserted his hand and arm to a point approximately two inches below the elbow joint into the vagina of the decedent.

Beatrice Thomas was called as a witness on behalf of respondent, and testified that, when she found the deceased on August 17, 1959, there was a gash over her eyebrows, fingernail scratches on her throat, and a bruise at the base of decedent’s spinal cord. She further testified that there was blood running down the decedent’s legs; that the towels in the bathroom were bloody, as was the bathtub; that there was a string of blood on the couch and dining room chairs, as well as the kitchen chairs; and, that there was considerable blood on the mattress where Eula Lloyd was lying.

Under the law in Illinois, claimant, in order to be entitled to an award for unjust imprisonment, must prove by a preponderance of the evidence (1) that the term served in prison was unjust; (2) that the act for which he was wrongfully imprisoned was not committed by him; and, (3) the amount of damages to which he is entitled. Jonnia Dirkans vs. State of Illinois, No. 4904, (opinion filed on February 25, 1965.) Munroe vs. State of Illinois, No. 4913, (opinion filed on April 7, 1966).

In the Dirkans case, the Court held that a claimant attempting to recover an award for unjust imprisonment must prove his innocence of the “fact” of the crime for which he was imprisoned. Claimant contends that his innocence has been determined by the Illinois Supreme Court. In the Supreme Court opinion setting aside the conviction of the Cook County Criminal Court, the Court stated:

“Upon consideration of the entire record, we conclude that grave and substantial doubt exists both as to the criminal agency and the cause of death. Under the circumstances, it becomes our duty to reverse the judgment of the conviction entered by the Criminal Court of Cook County.”

The quantum of proof, which claimant must present to this Court to prove his innocence of the crime for which he was imprisoned thereby entitling him to an award of damages from the State of Illinois for time unjustly spent in prison, is greater than the proof required to convince a judge of an Appellate Court that there was reasonable doubt as to his guilt of the crime charged. In the first instance, claimant must prove his innocence of the “fact” of the crime by a preponderance of the evidence, while in the second instance he must only present sufficient evidence to raise a reasonable doubt of his guilt of the crime charged.

It is the opinion of this Court that the State’s failure to sustain its burden in the criminal prosecution, that is, to prove guilt beyond a reasonable doubt, does not in itself amount to proof of the innocence of claimant of the “fact” of the crime by a preponderance of the evidence. This is especially so in a case such as this, where claimant’s evidence of his innocence of the crime is his own uncorroborated testimony, and where there is testimony and evidence in the record tending to incriminate claimant of the crime for which he was charged.

It is the opinion of this Court that claimant’s evidence, consisting chiefly of his own uncorroborated testimony, does not sustain claimant’s burden of proving by a preponderance of the evidence his innocence of the “fact” of the crime for which he was imprisoned, and thereby entitled him to recover damages from the State of Illinois for time unjustly spent in prison.

Claimant’s claim is, therefore, denied.


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    (No. 5138
    Guylene Berry, as Administrator of the Estate of Ellis Thurlow Berry, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

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

This is a cause of action brought by claimant against respondent, State of Illinois, for the death of claimant’s husband. Claimant alleges that respondent negligently failed to maintain a portion of the shoulder running along Illinois Route No. 127 in a safe and proper condition.

On June 13, 1963, Ellis Thurlow Berry, the 39 year old husband of the claimant herein, was driving his tractor in a southerly direction along and upon the shoulder of Illinois Route No. 127. At a point about 1 1/10 miles south of the Union County line, and approximately 100 feet north of Cooper Creek in Alexander County, Illinois, the tractor ran off the shoulder and down a sharp embankment, and turned over pinning Ellis Berry beneath it. As a result of the accident Ellis Berry sustained severe injuries resulting in his death.

Claimant alleges that respondent was negligent in allowing pieces of blacktop slab to lay concealed in the grass and weeds along the west shoulder of Illinois Route No. 127; that respondent negligently failed to keep the shoulder free and clear from the pieces of blacktop slab; and, that respondent negligently failed to mow the grass and weeds along the shoulder of the highway, so that the pieces of blacktop slab would be visible, all of which acts of negligence proximately caused the death of the decedent.

There were no actual eyewitnesses to the accident. However, one Oscar G-askill testified that immediately before the accident he was driving his truck along Illinois Route No. 127 in a southerly direction approaching the scene of the accident when he saw the decedent driving his tractor along the shoulder of the road, and that, as he passed, Berry grinned and waved to him. G-askill further testified that, after he passed Berry, he looked in his rear view mirror, and did not see Berry. Gaskill then turned around, and went hack to the scene of the accident where he found Berry pinned beneath the tractor.

The law in the State of Illinois is clear. In order for a claimant in a tort action to recover against the State, he must prove that the State was negligent; that such negligence was the proximate cause of the injury; and, that claimant was in the exercise of due care and caution for his own safety. McNary vs. State of Illinois, 22 C.C.R. 328; Link vs. State of Illinois, 24 C.C.R. 69. This Court has held many times that the State is not an insurer of all persons traveling upon its highways. McNary vs. State of Illinois, 22 C.C.R. 328; Link vs. State of Illinois, 24 C.C.R. 69.

The evidence indicates that Berry had driven his tractor on the shoulder of Illinois Route No. 127 for some distance before the accident, hut it does not indicate that an emergency of any nature caused the decedent to turn off the highway, or that the decedent turned off the highway onto the shoulder to avoid an accident, or to allow approaching vehicles to pass in safety.

Claimant has cited the case of Hammond vs. State, 24 C.C.R. 368, as authority for the proposition that farm vehicles have a right to use the shoulder of the highway as they see fit. While it is true that the second headnote of the syllabus of the Hammond case sets forth this proposition, a reading of the case discloses that there is no such proposition of law supported by any authority. The headnote was mistakenly extracted from a summation of the testimony in the case prepared by Commissioner Presbrey. In his report to the Court the Commissioner summarized the testimony of one of the State’s engineers by saying that “the engineer further stated that there was no regulation against farm vehicles using the shoulder as they saw fit.” This is not the law in Illinois.

The Uniform Act Regulating Traffic on Highways, referred to as Sec. 151 of Chap. 95½, Ill. Rev. Stats., provides as follows:

“(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
1. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
2. When the right half of a roadway is closed to traffic while under construction or repair;
3. Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or
4. Upon a roadway designated and sign posted for one way traffic;
5. Whenever there is a single track paved road on one side of the public highway and two vehicles meet thereon, the driver on whose right is the wider shoulder shall give the right-of-way on such pavement to the other vehicle.
(b) Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place, and under the conditions then existing, shall be driven in the right-hand lane available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction, or when preparing for a left turn at an intersection or into a private road or driveway.”

The Uniform Act Begulating Traffic on Highways, referred to as Sec. 109 of Chap. 95½, Ill. Rev. Stats., defines the term “roadway” as follows:

“(d) Roadway. That portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways the term “roadway” as used herein shall refer to any such roadway separately but not to all such roadways collectively.”

It appears from the evidence in this case that the decedent Berry was driving his tractor along and upon the shoulder -of the highway in violation of the statute requiring the driver of vehicles upon highways to drive on the right half of the roadway, except in special situations enumerated in the statute. It is the Illinois rule of law that the violation of an ordinance or statute, such as Sec. 151 of the Uniform Act Begulating Traffic on Highways, is prima facie evidence of negligence. Miller vs. Burch, 254 Ill. App. 387.

In a recent case decided by this Court, Welch vs. State of Illinois, No. 5057, suit was brought to recover damages for the death of a truck driver, who had driven his truck off the highway onto the shoulder of the road and into a large hole in the shoulder causing the truck to fall into a ravine, killing the driver. There was evidence introduced that the driver had driven onto the shoulder to avoid hitting an oncoming car, which was on the wrong side of the road, and that the truck skidded out of control. In awarding damages for the death of the truck driver, the Court held that the driver was not guilty of contributory negligence, because the shoulder of the highway was being used for an intended purpose, namely, the avoidance of an accident.

In the case of Lee vs. State of Illinois, No. 5076, claimant sought to recover damages for the death of his wife. The evidence showed that the front wheel of the car driven by the wife dropped off the paved portion of the highway and onto the lower shoulder of the road. In attempting to return the car to the paved portion of the highway the decedent lost control of the car, and it overturned. There was testimony to the effect that the shoulder was 3 to 4 inches lower than the paved highway. It was plaintiff’s contention that this difference in level constituted negligence on the part of the State proximately causing the accident. In denying recovery this Court held that the decedent was contributorily negligent in allowing the front wheel of her car to drop off the paved highway onto the shoulder. The Court also made reference to Sec. 151 of the Uniform Act Regulating Traffic on Highways, which has been set forth above, and stated that the acts of the decedent did not fall within any of the exceptions to the rule, which requires vehicles to be driven on the right half of the roadway.

Courts in other jurisdictions have rendered similar decisions. In McNaughton vs. State, 9 App. Div. 2d 990, 194 N.Y.S. 2d 873, the Court held that the State must maintain the shoulder of a road in reasonably safe condition, but that the shoulder is not intended for travel or use when there is nothing to interfere with travel on the paved highway. In this case the Court held the State not liable for injury to plaintiff, who for no apparent reason drove his car onto the shoulder of the road. In the case of Guyette vs. State, 22 App. Div. 2d 975, 254 N.Y.S. 2d 552, the Court held that, even assuming the State was negligent in permitting a rut in the shoulder of a road, claimant could recover only if he established that an emergency necessitated his driving upon the shoulder. In the case of Miller vs. State, 201 Misc. 859, 106 N.Y.S. 2d 528, the Court held that the principle relied upon by claimants that the shoulder of a highway must be maintained in a reasonably safe condition for use when occasion requires was applicable only when operation on the shoulder rather than on the pavement was a reasonable recourse by reason of some emergency or special condition. It appears from the evidence in the case at bar that there was no emergency or other legitimate reason for decedent Berry to drive his tractor on the shoulder of the road rather than on the paved portion of the highway.

It is the opinon of this Court that claimant has failed to sustain the burden of proof that decedent was free from contributory negligence. Claimant’s evidence of decedent’s careful habits and the circumstances of the accident are not sufficient to rebut the evidence of contributory negligence on the part of the decedent. Contributory negligence on the part of the decedent bars any recovery for the death of the decedent.

An award to claimant, Guylene Berry, as Administrator of the Estate of Ellis Thurlow Berry, deceased, is, therefore, denied.


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    (No. 5209
    William Bender, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1967.

    Petition of Claimant for rehearing denied August 14, 1968.
    D. A. McGrady, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

This action is brought against the State of Illinois for damages under Sec. 80 of the Act creating the Court of Claims, which provides that the Court of Claims shall have jurisdiction to hear and determine:

All claims against the State for time unjustly served in prisons of this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts: For imprisonment of 5 years or less, not more than $15,000.00; for imprisonment of 14 years or less but over 5 years, not more than $30,000.00; for imprisonment of over 14 years, not more than $35,000.00; and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.

William Bender, claimant, was arrested and charged together with Robert W. Richards, of committing the crime of armed robbery of a tavern in Carlinville, Illinois, on May 7, 1954. Bender pleaded “Not Guilty” to the charge, and after a trial was found guilty by a jury on September 9, 1954. On September 15, 1954, Bender was sentenced to the Illinois State Penitentiary for the duration of his natural life.

On October 17, 1960, the Supreme Court of the State of Illinois reversed the conviction, and remanded the cause. On January 28,1961, the defendant-claimant, William Bender, was again convicted upon trial for the crime of armed robbery as charged, and was sentenced to the Illinois State Penitentiary for a term of not less than three years nor more than twenty-five years. On March 23,1962, the Supreme Court of the State of Illinois again reversed the conviction, and remanded the cause to the Circuit Court of Macoupin County, Illinois. On May 17, 1963, Bender made bond, and was released from custody having been imprisoned in various jails and penitentiaries in the State of Illinois since May 10, 1954. The charge of armed robbery was dismissed by the State of Illinois in December, 1964.

The question to be decided in this case is whether claimant has carried the burden of proving and establishing his innocence of the crime of which he was charged, and for which he was imprisoned. At the original trial on the charge of armed robbery, Richards testified for the State, and named Bender as the person who committed the crime using an automobile and gun, which were owned by Richards, and loaned to Bender for the robbery. Bender claims that the testimony of Richards is false.

Bender testified in the cause before this Court that on the night of the robbery he had borrowed a 1952 Chrysler automobile belonging either to Robert W. Richards or to Richards’ wife, and, while driving around the City of Springfield, Illinois, between 10 -.00 P.M. and 11:00 P.M., was involved in a one car accident at 14th or 15th and Madison Streets at the railroad crossing. He stated that he left the scene of the accident without reporting it to the police, and did not have his injuries treated in Springfield because he was on parole, and did not want to get in trouble with his parole officer for driving an automobile in violation of the terms of his parole. He further testified that he then returned the keys to the car to Vivian Richards at the Gay Nineties tavern, and told her about the accident. He then went to his brother’s home, and he, his brother, and his brother’s wife drove to Peoria, Illinois, where they got a room at the Andre Hotel. They drove to a hospital in Peoria where the cut on the right side of Bender’s face was treated requiring 96 sutures. Bender did not give his correct name at the hospital. On May 10, 1954, Bender was arrested in a room in the Andre Hotel, Peoria, Illinois, in the company of one Peggy Lee Baird.

It should be noted that Bender did not contend at either of his two trials on the armed robbery charge that at the time the crime was committed he was driving a borrowed car around the City of Springfield, Illinois, and that he wrecked the car in Springfield, Illinois, causing the injury to his face.

Claimant did not produce a single witness to corroborate his story, although it would appear from his testimony that his brother, his brother’s wife, Vivian Richards, or Peggy Lee Baird could have helped him in this regard. The evidence in this case discloses that the Springfield, Illinois, police records show no indication of an accident having occurred as described by claimant.

In Munroe vs. State of Illinois, Case No. 4913, this Court said that one of the primary issues to determine in a case brought under Sec. 8C of the Court of Claims Act was whether claimant was innocent of the crime for which he was imprisoned. The burden is on claimant to prove by a preponderance of the evidence that the act for which he was wrongfully imprisoned was not committed by him.

In the case of Jonnia Dirkans vs. State of Illinois, Case No. 4904, this Court held that claimant must prove his innocence of the “fact” of the crime.

It is the opinion of this Court that in view of the evidence in this case, and in view of the fact that claimant has failed to produce even one witness to corroborate his testimony as to his innocence- of the crime with which he was charged, claimant has totally failed to carry the burden of proving by a preponderance of the evidence that the act for which he was imprisoned was not in fact committed by him.

The claim is hereby denied.

Opinion on Rehearing

This cause coming on to be heard upon the petition of claimant for rehearing, and the Court having examined said petition and the file in said cause of action finds that claimant has failed to adequately allege those points, which were purported to have been overlooked or misapprehended by the Court.

The cause at hand was brought under Section 8C of the Court of Claims Act, which states as follows:

All claims against the State for time unjustly served in prisons of this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts: For imprisonment of 5 years or less, not more that $15,000.00; for imprisonment of 14 years or less but over 5 years, not more than $30,000.00; for imprisonment of over 14 years, not more than $35,000.00; and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.

This is not a trial de novo of the guilt or innocence of claimant, but a hearing in which claimant must prove his innocence of the crime of which he was charged in the original criminal case in the lower Court by a preponderance of the evidence. This interpretation of Sec. 8C of the Court of Claims Act, and the proof required have been followed by the Court of Claims since the passage of Sec. 8C by the legislature. Roland Munroe, Jr. vs. State of Illinois, No. 4913; Jomnia Dirkans vs. State of Illinois, No. 4904; Henry Napue vs. State of Illinois, No. 4912.

Claimant’s petition for rehearing alleges that the Court has failed to consider the presumption of innocence that has never been overcome in claimant’s case, as there is no legal conviction, and that by dismissing charges the State has conceded to the innocence rather than the guilt of claimant. This Court finds that claimant has confused two separate forums and two separate theories of law. The original forum wherein the claimant was tried for an alleged crime, and wherein the claimant must have been proven guilty beyond all reasonable doubt, and the Court of Claims wherein claimant seeks to recover against the State under Sec. 8C of the Court of Claims Act. There is no legal relationship between the finding of the Supreme Court as to whether or not the civil rights of claimant were violated, and the finding of the Court of Claims wherein claimant seeks recourse under a statutory provision in a semi-judicial forum, which was created by the legislature for the purpose of hearing those causes of action against the State of Illinois that are constitutionally prohibited in normal courts of law. In this latter forum, rules of evidence and procedure and elements of proof are of a special nature often dissimilar to those rules prescribed in a Court of criminal jurisdiction.

This Court affirms its previous determination in the hearing of this cause, and finds that claimant has failed to allege any points of law or fact that had been overlooked or misappreprended by the Court. Claimant’s petition for rehearing is denied.


text:
    (No. 5345
    Barker Milling and Grain Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    Barker Milling and Grain Company, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Barker Milling and Grain Company, seeks to recover from the State of Illinois payment in the sum of $50.00 for an advance on warehouse license never issued. Demand for said sum was refused on the grounds that funds appropriated for such payments had lapsed.

A stipulation was entered into by claimant and respondent as follows:

“The report of the Illinois Commerce Commission to the Illinois Attorney General, dated December 2,1966, (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.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $50.00.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Barker Milling and Grain Company, is thereby awarded the sum of $50.00.


text:
    (No. 5433
    The Firestone Tire and Rubber Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    The Firestone Tire and Rubber Company, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, The Firestone Tire and Rubber Company, filed its complaint against respondent for the sum of $547.46 for materials furnished the Bureau of Machinery of the Division of Highways of the Department of Public Works and Buildings.

A stipulation was entered into by claimant and respondent as follows:

“The report of the Department of Public Works and Buildings dated July 3, 1968, (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.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $547.46.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, The Firestone Tire and Rubber Company, is hereby awarded the sum of $547.46.


text:
    (No. 5438
    Arthur M. Goldrich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    Rosenthal and Schanfield, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $3,900.00 for services rendered as a Certified Public Accountant in examining certain credit unions as per direction of Joseph E. Knight, Director of the Department of Financial Institutions.

On or about the 22nd day of April, 1968, claimant and respondent entered into a stipulation of facts, which reads as follows:

“That services were rendered to respondent at the special instance and request of the Department of Financial Institutions.
“That the statements attached to the complaint as exhibit A are due and owing, namely, three thousand nine hundred dollars ($3,900.00).
“That, as a result of delay in billing, payment was not made prior to the closing of the biennium appropriation.
“That no assignment of transfer of the claim has been made.
“That there is rightfully due to claimant the sum of three thous-sand nine hundred dollars ($3,900.00).
“That, upon the foregoing agreed case filed herein, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved up upon the trial of said issue.”

From the stipulation, set forth above, it appears that the reason for non-payment was the lapse of an appropriation. 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 contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Arthur M. Goldrich, is hereby awarded the sum of $3,900.00.


text:
    (No. 5445
    Edward Limperis, Trustee in the Matter of Chicago Seating Company, Inc., a Bankrupt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 11, 1968.

    Ahern and Gillogly, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Edward Limperis, as Trustee in Bankruptcy for Chicago Seating Co., Inc., a Bankrupt, seeks to recover the sum of $591.30 purportedly due and owing to bankrupt for materials and services rendered to the Department of Public Works and Buildings under contract No. 73198 at The Tinley Park State Hospital, Tinley Park, Illinois.

Exhibit A attached to the complaint is a letter from Lorentz A. Johanson, Supervising Architect of the Department of Public Works and Buildings, which letter states as follows:

“This will acknowledge receipt of your form letter, dated September 16, 1967, with reference to the above captioned subject.
“Our contract is with the Chicago Seating Company, and we require a letter from that company, signed by its officials, agreeing to your appointment as their authorized collector.
“For your information, there remains an unpaid balance of only $591.30 on this contract.”

Subsequently, on the 21st day of May, 1968, a stipulation was made and entered into by and between the Trustee in Bankruptcy and the Department of Public Works and Buildings, through William G. Clark, Attorney General. It reads as follows:

“That Edward Limperis is the duly appointed and acting Trustee in the matter of Chicago Seating Co., Inc., Bankruptcy No. 65 B 4343.
“That the bankrupt corporation furnished certain works and services for and in behalf of the Department of Public Works and Buildings under contract No. 73198 at the Tinley Park State Hospital, Tinley Park, Illinois.
“That under the terms of the contract the State of Illinois, Department of Public Works and Buildings, is indebted to the bankrupt corporation in the amount of $591.30, which is the unpaid balance due on the total contract price.
“That no assignment or transfer of the claim has been made.
“That the claimant is justly entitled to the amount therein claimed from the State of Illinois.
“That he has made no other claim to any person, corporation or tribunal other than the State of Illinois.”

Claimant, Edward Limperis, Trustee in the matter of Chicago Seating Co., Inc., a bankrupt, is hereby awarded the sum of $591.30.


text:
    (No. 5446
    Xerox Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    Xerox Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Xerox Corporation, filed its complaint against respondent for the sum of $161.46 for materials and services rendered the Division of Highways, Bureau of Traffic, of the Department of Public Works and Buildings.

A stipulation was entered into by claimant and respondent as follows:

“That claimant, Xerox Corporation, had completed the work as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of One Hundred Sixty-One and 46/100 Dollars ($161.46).
“That, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennium appropriation.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof had occurred.
“That upon the foregoing agreed case filed herein the Court shall decide thereon and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due.

Claimant, Xerox Corporation, is thereby awarded the sum of $161.46.


text:
    (No. 5447
    Joseph T. King, Theodore G. Lassin and Herman Leslie, Claimants, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    Lazarus and Winokur, Attorneys for Claimants.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Dove, J.

Claimants, Joseph T. King, Theodore G. Lassin and Herman Leslie, filed their complaint against respondent for various amounts hereinafter set forth for services rendered the Department of Public Works and Buildings.

A stipulation was entered into by claimants and respondent as follows:

“That, prior to April 21, 1967, claimants were employees of respondent, and that, on March 2, 1967, each of them was advised by telegram that he was being suspended for thirty days without pay pending an investigation of garage operations.
“That on April 1, 1967 each claimant was reinstated, and that on April 21, 1967 the position of each claimant was abolished.
“That claimants are entitled to the pay due them during the period of suspension as follows:
Claimant, Joseph T. King ....................... $716.00
Claimant, Theodore G. Lassin.................... 609.00
Claimant, Herman Leslie ........................ 609.00
“That the parties will present no witnesses nor evidence before Commissioner Griffin.
“That the Court shall decide and render judgment herein according to the rights of the parties, and in the same manner as if the facts stipulated herein were proved upon the trial of said issues.”

We are of the opinion that each of the claimants is justly entitled to the amount claimed from the Department of Public Works and Buildings.

Claimant, Joseph T. King, is awarded the sum of $716.00.

Claimant, Theodore Gr. Lassin, is awarded the sum of $609.00.

Claimant, Herman Leslie, is awarded the sum of $609.00.


text:
    (No. 5500
    R. Dron Electrical Company, A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    R. Dron Electrical Company, A Delaware Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, R. Dron Electrical Company, a Delaware Corporation, engaged in electrical construction and maintenance, seeks the sum of $426.17 for services rendered the State of Illinois.

The Departmental Report, which was submitted by the Division of Highways, states as follows:

“In April, 1965, the State of Illinois, through its Department of Public Works and Buildings, Division of Highways, contracted with R. Dron Electrical Company for certain repairs to traffic signals located at the intersection of Route Nos. 111 and 140 in Madison County.
“The repairs were ordered by properly authorized persons in District 8 of the Division of Highways, and they were made promptly and satisfactorily. The charges for the material and labor used in making the necessary repairs were reasonable.
“No part of R. Dron Electrical Company’s bill of $426.17 has been paid, and the only reason the bill cannot now be paid is that the appropriation therefor has lapsed.
“As of September 30, 1965, there was an unobligated balance of sufficient amount in the appropriation from which the claimant’s invoice could and would have been paid.”

It has long been a rule of this Court that, where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R. 302; Gilbert-Hodgman, Inc., vs. State of Illinois, 24 C.C.R. 509.

Since all the qualifications have been met in the instant case, claimant is hereby awarded the sum of $426.17.


text:
    (No. 5512
    Keuffel and Esser Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    Wolfe, Klein, Bonner and Bezark, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $738.70 for materials furnished to the Division of Highways of the Department of Public Works and Buildings.

A stipulation was entered into by claimant and respondent as follows:

“That services were rendered to respondent at the special instance and request of the Department of Public Works and Buildings, Division of Highways.
“That the statements attached to the complaint as exhibit A are due and owing, namely Seven Hundred Thirty Eight Dollars and Seventy Cents ($738.70).
“That, as a result of delay in billing, payment was not made prior to the closing of the biennium appropriation.
“That no assignment or transfer of the claim has been made.
“That there is rightfully due to claimant the sum of Seven Hundred Thirty Eight Dollars and Seventy Cents ($738.70).
“That, upon the foregoing agreed case filed herein, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved up upon the trial of said issue.”

Where the evidence shows that the only reason a claim was not paid was because the appropriation for the biennium in which the service was performed had lapsed, this Court has held that it would make an award. Continental Oil Company vs. State of Illinois, 23 C.C.R. 70, and M. J. Holleran, Inc., vs. State of Illinois, 23 C. C. R. 17.

Claimant, Keuffel and Esser Company, a Corporation, is hereby awarded the sum of $738.70.


text:
    (No. 5513
    Chicago Housing Authority, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 14, 1968.

    Kula and Hall, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Chicago Housing Authority, is seeking to recover the sum of $2,145.87 for unpaid rent due claimant from recipients of assistance from the Cook County Department of Public Aid.

It appears that on or about March 20, 1959 the Chicago Housing Authority entered into an agreement with the Cook County Department of Public Welfare, a county department under the supervision and direction of the Illinois Department of Public Aid, pursuant to statute, whereby it was agreed that the Cook County Department of Welfare would reimburse claimant for any unpaid rent, not to exceed $50.00, owing by a vacated tenant who is or was a recipient of public assistance at the time the rent accrued.

Subsequently a written stipulation was entered into by claimant and respondent as follows:

“That rentals due for billing to Cook County Department of Public Aid for the unpaid rent of vacated recipient tenants were rendered to the Department of Public Aid.
“That the statements attached to the complaint as exhibit A are due and owing, namely, Two Thousand One Hundred Forty-five Dollars and 87/100 ($2,145.87).
“That, as a result of a delay in billing, payment was not made prior to the closing of the biennium appropriation.
“That no assignment or transfer of the claim has been made.
“That there is rightfully due to claimant the sum of Two Thousand One Hundred Forty Five Dollars and 87/100 ($2,145.87).
“That, upon the foregoing agreed case filed herein, the Court shall decide thereon and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved up upon the trial of said issue.”

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 contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Continental Oil Company vs. State of Illinois, 23 C.C.R. 70, and M. J. Holleran, Inc., vs. State of Illinois, 23 C.C.R. 17.

Claimant, Chicago Housing Authority, is hereby awarded the sum of $2,145.87.


text:
    (No. 5208
    Harold M. Wagner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1968.

    Rolland H. Stimson, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman and Arthur L. Berman, Assistant Attorneys General, for Respondent.
   Dove, J.

Claimant seeks $4,400.00 in damages allegedly incurred by loss of salary during his suspension as an employee of the Illinois State Highway^ Police.

From the evidence introduced at the hearing and the affidavit filed by stipulation, it appears that:

1. Claimant, Harold Wagner, was a duly appointed and acting trooper of the State Highway Police of the State of Illinois.
2. On November 15, 1963, he was suspended as a trooper.
3. The Illinois State Police Merit Board entered an order on July 10, 1964 directing the Superintendent of the Illinois State Police to reinstate claimant to the rolls of the Illinois State Highway Police as of November 16, 1963.
4. Claimant was off duty for a period of eight months. His salary immediately prior to his suspension was $550.00 per month for a forty-five hour week, and, had he not been suspended, he would have received in salary from the State of Illinois as a police trooper the sum of $4,400.00.
5. While he was suspended, claimant was employed in private industry at a lower hourly rate than he would have received as a highway patrolman, and, instead of working forty-five hours a week as a highway patrolman, he avéraged approximately sixty hours per week. His total earnings from private industry during the period of his suspension were $3,876.86. Of the aforesaid amount $665.39 was the sum of money claimant received for overtime work, or work in excess of forty-five hours per week in his private employment. It, therefore, follows that he received from employment for forty-five hours per week the sum of $3,211.47 during the eight months of his suspension.

It is the opinion of this Court that claimant has amply demonstrated his intent to mitigate damages, and that he is entitled to recover the amount of the salary unlawfully withheld from him, less in mitigation any earnings he may have received for working forty-five hours per week. Claimant earned $3,211.47 during the period of his suspension. This amount will, therefore, be used in mitigation of his claim of $4,400.00.

Claimant is hereby awarded the sum of $1,188.53.