text:
    (No. 4518
    Effie Lindberg, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 23, 1954.

    Arndt and Wingard, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This is an action brought by claimant, Effie Lindberg, against respondent, State of Illinois, to recover $7,500.00 in damages for personal injuries, which she sustained on June 25, 1950, when she slipped and fell upon' the concrete floor of a women’s lavatory located in the Mississippi Palisades State Park, which is owned and operated by respondent, State of Illinois. The accident occurred while she was attending a church reunion, as a member of the Reorganized Church of Jesus Christ.

Claimant charges in her amended complaint, filed herein, that respondent leased a portion of said State Park to the Reorganized Church of Jesus Christ for the period from June 24, 1950 to July 2, 1950. A women’s lavatory was situated on said leased premises, which had a smooth concrete floor sloping in all directions toward a drain, which was countersunk in approximately the center of the floor. Claimant further charges that the lavatory was defectively constructed, and, on June 25, 1950, the concrete floor was moist, wet and slippery, and, therefore, dangerous, all of which respondent either had, or by the exercise of reasonable diligence, could have had notice of said condition in time to remedy the same. The amended complaint further charges that on June 25, 1950 claimant, as an invitee of respondent’s lessee, was present in said park, entered the lavatory, and, in making her departure therefrom, was caused to slip and fall, because of the above mentioned dangerous condition, and without any fault on her part. As a result of said fall, claimant sustained a broken hip, which has resulted in permanent injuries, necessitating the expenditure of large sums of money for medical and hospital expenses, for which she asks $7,500.00 damages.

Respondent has filed a general denial to all of said allegations, and further charges in its answer that the Reorganized Church of Jesus Christ, as lessee of respondent, had assumed responsibility for the maintenance of the premises, and, therefore, any negligence, other than that of claimant, contributing to her fall, was that of the lessee.

Although the question of the status of claimant, as raised by respondent, is one of interest, it will not be necessary to consider it, for the reason that, even assuming respondent owed claimant the duty to exercise ordinary care to' keep the premises in a reasonably safe condition, which question, however, we do not decide, claimant has failed to bear the burden of proving her case against respondent on this theory, i.e., the one most favorable to claimant.

The facts concerning the accident, as shown by the evidence, are as follows: On June 24, 1950, claimant, a widow, 68 years of age, and a resident of Mathersville, Illinois, went to the Mississippi Palisades State Park, as a member of the Reorganized Church of Jesus Christ, for a church reunion. The women’s lavatory in question was located on the camping site, which the Reorganized Church of Jesus Christ was occupying with the permission of the State of Illinois. Claimant’s exhibit No. 2, being a Departmental Report of the State of Illinois, which was offered in evidence by both claimant and respondent, contains photographs portraying the exterior and interior of the lavatory, the inside measurements of which were 9. The floor was constructed of smooth cement trowel finish with a drain 9" in diameter located in the center of the floor, and with a 2" taper in the floor from the outside walls to the drain. There were two windows on the south side of the lavatory, and one on the east side. Along one side of the lavatory were six toilet stools, and at the opposite end from the doorway opening into the lavatory were located two wash basins. Claimant testified that she had entered and used the lavatory on June 24, 1950, and did not remember whether the floor was wet or dry on that date; and, that she and a Mrs. Wakeland entered the lavatory at approximately 8:00 A. M. on June 25, 1950. Mrs. Wakeland then left the building, and waited for claimant, while she went to the lavatory, and washed her hands. She further testified that at the time there were several girls, women and little children in said lavatory, the stools were occupied, the wash basins were being used, and a total of approximately 8 or 10 persons were standing against the wall opposite the stools. She used one of the stools, and then washed her hands at one of the wash basins. After washing her hands, she started to walk back toward the door. She stated that the floor was wet, and that, as she walked along, she was talking, but watching her steps carefully. Suddenly her foot slipped. She tried to catch herself, put her hand out, and then fell to the floor, as a result of which she sustained a fracture of her hip. She stated that she slipped on the wet floor, and fell at the drain; that the floor was damp all over. She further stated that, although the light was not burning in the lavatory at the time, it was daylight, and' the view was good within the room, and she had no trouble seeing the floor. She stated that, when she entered the lavatory, she was looking at the floor, and saw moisture covering it, which appeared to be caused from condensation. She stated that no one jostled or pushed her, and that she did not notice any foreign substance upon the floor; that it was clean in all respects. She- further stated that there was no standing water on the floor, hut only moisture. Her testimony concerning the condition of the floor was borne out by Mr. Edward B. Williams, an official of the church organization, who went' into the lavatory after he was notified that claimant had been injured. Mr. Orville C. Short likewise testified to basically the same facts. Mrs. Wakeland, who had gone to the lavatory with claimant, stated she did not see Mrs. Lindberg fall, as she had waited outside the lavatory while Mrs. Lindberg washed her hands. She also testified that the floor was wet, but clean, with no foreign substance on the floor; and further stated that she had no trouble seeing the floor, as the light was good. All of the witnesses testified that on the previous day, that is, June 24, there had been a cloudburst, and that on the morning in question the weather was hot and humid outside, yet cool and comfortable inside. The witnesses further stated that the wet condition of the cement floor was or could be due to condensation arising from the temperature and humid conditions.

It is our considered opinion that the record in this case does not show any negligence on the part of respondent, nor the existence of a dangerous condition in the lavatory. There is no evidence in the record establishing that the manner of construction was other than the usual and ordinary type used for a lavatory located in a park. The only complaint made concerning the condition of the floor was that it sloped slightly, was of smooth concrete construction,, and was wet and slippery. From claimant’s brief and argument, it appears that claimant relies upon this fact, contending that the floor became slippery because of condensation, of which condition respondent knew or should have known. It is to be noted that nowhere in the record is there any evidence or argument offered by claimant showing, or tending to show, what, if anything, respondent should have done to avoid the condensation, or what other type of construction and design should have been used. This Court should not, and will not speculate upon this question.

It is. further to be noted that there is no evidence to the effect that any of the persons, who were likewise using the lavatory at the time in question, and particularly claimant’s witnesses, Mr. Williams, Mr. Short and Mrs. Wakeland, slipped, or had any difficulty in walking upon the floor of the lavatory.

The mere fact that the floor was sloping, wet and slippery does not in and of itself constitute a condition, which in the eyes of the law is a “dangerous condition”.

In the case of Miller vs. Gimball Bros., Inc., 262 N.Y. 107, 186 N.E. 410, the Court, in reversing a recovery of a plaintiff, who slipped on a wet, sloping entrance way constructed of Tennessee marble, said:

“We may assume that rainwater may make the smooth sloping floor somewhat more slippery than if the floor were dry. None the less, it does not appear that the floor, even when wet, was dangerous.”

If the condition of the lavatory, as shown by the evidence in the instant case, was considered to be such as to justify a recovery herein, the burden of maintenance would be so great that respondent would become an insurer of those using like lavatories in State Parks when the floors were wet.

• In Carlson vs. United States, 90 F. Supp. 159 at 160, under the Federal Tort Claims Act, the court stated:

“The court is of the opinion that, although plaintiff has sufficiently proved that the floor was wet and somewhat slippery, she has failed to show either negligence on "the part of the defendant or lack of contributory negligence on her own part. The owners or operators of buildings where the public is invited to come on business are not insurers against all forms of accidents that may happen to any who come. ‘If what was shown in this case was sufficient to permit recovery, it would require store owners to have a mopper stationed at the doors on rainy days for the sole purpose of mopping up after every customer entering or leaving the premises. Every store owner would be required to be an insurer against such accidents to public invitees who came in ■on rainy days with wet shoes.’ Sears Roebuck & Co. vs. Johnson, 10 Cir., 91 F. 2(d) 332, 339.”

It is fundamental that respondent is not an insurer of the safety of the patrons of the park, and, at the most, can only be held to that degree of care, which a reasonably prudent individual or organization would use in constructing and maintaining a like structure in a like location, under the same and similar circumstances. It is likewise fundamental that the burden of proof is upon claimant to establish negligence on the part of respondent, as well as her freedom from contributory negligence, before recovery can be had. In our judgment, claimant has not borne this burden of proof.

It is clear from the evidence, and particularly from claimant’s own testimony, that the very condition complained of was as apparent to claimant, as it would have been to any agents or servants of respondent had they been present. She, therefore, should be held to as high a degree of care for her own safety, as would be required of respondent in its conduct toward her. She should also be held to have assumed whatever risks were involved in going upon the wet floor, which were within themselves an incident to such act. There was no hidden danger. She was completely cognizant of the condition of the floor. The case, it seems to us, does not present a different situation in this regard than do those cases wherein a slippery condition on the floor of a building has been brought about by rainfall. The law of Illinois is well settled in those cases wherein the person injured had as much knowledge of the condition as the owner of the store or building.

In the case of Murray vs. Bedell Company of Chicago, 256 Ill. App. 247, an invitee slipped in the lobby of the store, and sustained injuries as a result of her fall. There was mud and water on the floor, which created a slippery condition. In reversing the judgment for the plaintiff in the trial court, and entering judgment in favor of the defendant, the Appellate Court stated at pages 249, 250 and 251:

“From, the testimony of the plaintiff it is apparent that the danger, if any, was clearly evident to her, as well as the defendants, and that she was aware of the condition and of the possibility of sustaining a fall before she undertook to pass over and along the floor space of the vestibule.
The condition, described by the witnesses is one that is not only not unusual, but is customarily to be found on such days as described in the testimony, in vestibules of this character and the sidewalks and the premises surrounding entrances to public places.
* * * *
In the case at bar the plaintiff was as well apprised of the condition existing in the vestibule as the defendant, and should be held to as high a degree of care for her own safety as would be required of the defendant.”

The court, in arriving at its decision, quoted at length in its opinion from a similar case, Kresge Co. vs. Fader, 116 Ohio St. 718:

“ ‘It is a fact known to all that many stores in all branches of trade have an inside door or passageway into the store, usually in the middle of the front. On each side of this passageway is a display window. The passage then extends back ten or twelve feet or more to the entrance door to the store. This passage usually has a slight slope from the door to the sidewalk, at which line there is no door. This slope is to carry away the rain that may blow into the passageway. The passageway is in fact practically a part of the sidewalk, but at the same time it is within thq front line of the store, and under control of the store. Would anyone contend that, if a person walked into such passageway when it was raining, and there slipped and fell, he could recover damages because there was moisture on the floor of the passageway? Manifestly not. Everybody knows that, when people are entering any building when it is raining, they will carry some moisture on their feet, which will render the floor near the door on the inside damp to some extent, and every onel knows that a damp floor is likely to be a little more slippery than a dry floor.
* * * *
Owners or lessees of stores, office buildings, banks, hotels, theaters, or other buildings where the public is invited to come on business or pleasure, are not insurers against all forms of accidents that may happen to any who come.’ See also Dudley vs. Abraham, 107 N.Y.S. 97.”

Murray vs. Bedell Co., supra, has been followed by the Circuit Court of Appeals of the Seventh Circuit, in Brunet vs. S. S. Kresge Co., 115 F. 2(d) 713, a similar case wherein the court arrived at a like result. In Carlson vs. United States, 90 F. Supp. 159, the court stated at page 160:

“Plaintiff herself testified that it had been raining all day, and that the sidewalks and streets were wet. With those facts in her possession, she was certainly apprised, or should have been, of the likelihood of the floor inside the Post Office being wet, and of the possibility of sustaining a fall as a result thereof. The case at bar comes squarely within the purview of the facts and the law as announced in Murray vs. Bedell Co. of Chicago, 256 Ill. App. 247.”

The court’s decision in Murray vs. Bedell Co., supra, is further followed in Clark vs. Carson Pirie Scott & Co., 340 Ill. App. 260.

Professor William L. Prosser in his handbook, Prosser On Torts, at page 384, recognizes the rule that ‘ ‘ One who enters upon the premises of another, even as a business visitor, assumes the danger of all known or obvious conditions, which he finds there”.

The court in Dargie vs. East End Bolders Club, 346 Ill. App. 480 at 490, recognizes the same rule:

“An ‘invitee assumes all normal, obvious or ordinary risks attendant on the use of the premises.’ (65 C.J.S. Neg., Sec. 50, pp. 542, 543.)”

In Mack vs. Woman’s Club of Aurora, 303 Ill. App. 217, a case involving a woman, who slipped upon a waxed floor, the Appellate Court, in reversing a trial court judgment, stated at page 220:

“. . . Whatever risks were involved with her use of the floor were obvious ones and such as were incident to each of her former visits to the club room, and common to every other member of the club. Under such circumstances, she must be held to have assumed any risks involved in her walking upon the floor, which were within themselves an incident to such act. There appears to have been no hidden danger.”

Said case has been followed by this Court in Anna Carrano vs. State of Illinois, 18 C.C.R. 30.

Then, too, in addition to the above, there has been no showing that respondent knew, or, in the exercise of reasonable care, should have known that the floor was slippery at the time of the accident in question. The burden of showing such knowledge is upon claimant. She has failed to offer testimony establishing either actual or constructive notice of the alleged unsafe condition.

We, therefore, hold that claimant is not entitled to recover for the above reasons, and will not extend the opinion further by considering the other questions raised by respondent, or the question of damages. The claim is denied.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4564
    Columbia Fire Insurance Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 23, 1954.

    Gillespie, Burke and Gillespie, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Leave of Court having first been granted to claimant, an amended complaint was filed in this case on December 3, 1953. Respondent has filed a motion to dismiss said amended complaint on the grounds that claimant has failed to pursue the remedies afforded it by the protest statute, Par. 172, Chap. 127, Ill. Rev. Stats., 1951; and Sec. 407 of the Illinois Insurance Code, Par. 1019, Chap. 73, Ill. Rev. Stats., 1951. Such failure, respondent contends, is a bar to claimant’s action herein.

A statement, brief and argument in support of the motion heretofore filed has also been submitted. No authorities were cited by claimant.

The amended complaint states that claimant paid privilege taxes to respondent for the year of 1952, and, also, filed with the Director of Insurance tax receipts showing taxes paid in accordance with Sec. 409 of the Illinois Insurance Code for the benefit of organized fire departments of cities, villages, incorporated towns and fire protection districts of the State of Illinois, as a tax on premiums received by claimant in such cities, villages, incorporate!! towns and fire protection districts. The amount so paid was in the sum of $1,700.25. On February 27, 1952, evidence of such payments made in accordance with Sec. 414 of the Illinois Insurance Code was filed with the Director of Insurance. Such payments should have been deducted from privilege taxes assessed claimant for the year of 1952. It is further alleged that the Director of Insurance of the State of Illinois negligently and carelessly failed to make a record, memoranda, or other notation of the performance of the conditions precedent to the deduction of the $1,700.25 from claimant’s 1952 amiual privilege taxes. Claimant further contends that it presented a claim to the Director of Insurance, as evidenced by a letter, which it attached, marked as an exhibit, and made a part of said complaint. It further attached a letter, dated June 18, 1953, written by the Director of Insurance of the State of Illinois, wherein the error or omission was recognized. This letter is also marked as an exhibit, attached to the claim, and made a part thereof.

Claimant contends that, because of the negligence and misrepresentation of the Director of Insurance, it is entitled to recover its overpayment of privilege taxes for the year of 1952 from respondent.

Claimant does not allege in its complaint that the privilege taxes for the year of 1952 were paid under protest, or that it took any positive action, other than the writing of a letter to the Director of Insurance.

Claimant, having failed to pursue its remedy by paying the privilege taxes under protest, as provided by Par. 172, Chap. 127, Ill. Rev. Stats., 1951, and Sec. 407 of the Illinois Insurance Code, Par. 1019, Chap. 73, Ill. Rev. Stats., 1951, has lost its right to recover said funds, which were voluntarily paid.

Claimant had a right to object to the assessment of the taxes, and obtain a hearing. A provision is made in Sec. 407 for a review of either the court’s order, or the decision of the Director of the Department of Insurance, in which event the funds in question would not have been paid to the State Treasurer until the matter had been completely litigated. A similar question was before this Court in the case of Great American Insurance Company vs. State of Illinois, 19 C.C.R. 91, beginning on page 95. We quote:

“There is no dispute that the tax in this case was voluntarily paid. The petitioner, or the County Fire Insurance Company, had a remedy under Chap. 127, Par. 172, Ill. Rev. Stats. (State Bar Edition). (Adams vs. Nudelman, supra; Farm Bureau Oil Co., Inc. vs. State of Illinois, 14 C.C.R. 153 at 155.)
Under the decisions of our courts, the money having been paid into the State Treasury, and no appropriation being applicable for the refund in this case, the claim will have to be denied. (Adams vs. Nudelman, supra.)"

No statute is cited making a provision for a repayment of privilege taxes, or taxes of any kind, voluntarily paid.

The claimant in this case had knowledge of the filing of the receipts showing the sum of $1,700.25 paid to the local taxing body, for which credit should have been given by the Department of Insurance in assessing privilege taxes for the year of 1952. The privilege taxes were paid voluntarily with knowledge of these facts.

In view of the cases previously cited, and the case of The American Can Company vs. Gill, 364 Ill. 254, the funds having been transmitted to the State Treasurer, the allegation of negligence on behalf of the Director of Insurance would not change the law in such cases.

For the reasons above assigned, the motion of respondent to dismiss claimant’s amended complaint is hereby allowed.


author: Wham, J.

text:
    (No. 4530
    Dean Ackley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 24, 1954.

    Thomas C. Bradley, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case involves a tort claim under Section 8C of the Court of Claims Law for injury to the person of claimant, Dean Ackley, while an inmate of the St. Charles Training School for Boys at the Sheridan Branch of said school, which was operated by respondent. The said injury occurred on or about January 15, 1948, at which time claimant was a minor, sixteen years of age. .

The complaint filed herein alleges that claimant, while an inmate of the aforesaid institution, was assigned to work in the laundry room, and was directed by an employee of respondent to load wet clothes into an extractor, an electrically operated machine, which whirls wet clothes at a high rate of speed in order to remove the water therefrom. While performing said task, claimant’s left arm was caught by the whirling basket of wet clothes contained therein, and torn from his body. The complaint alleges that claimant was in the exercise of due care for his own safety, and that respondent was guilty of one or more of several acts or omissions, namely: (1) Negligently and carelessly failed to equip the extractor with an interlocking device, which would prevent the basket of the machine from whirling when the cover was open; (2) negligently and carelessly failed to equip said extractor with an interlocking device to prevent the cover from being opened while the basket was in motion; (3) negligently and carelessly failed to equip the extractor -with a cover over the basket; (4) negligently and carelessly failed to comply with the provisions of the Health and Safety Act, and the Health and Safety Rules of the State of Illinois then in effect, which Rules required such safety devices above referred to; and, (5) negligently and carelessly failed to properly instruct claimant in the use and operation of the extractor prior to allowing him to operate same.

Respondent contends that the extractor was equipped with a cover, and that claimant had been properly instructed in its use prior to the accident. Respondent further contends that it was not negligent in any respect, and that claimant’s injury was caused, or contributed to, by claimant’s own negligence.

Respondent admits that the machine was not equipped with interlocking devices, which would have prevented the machine from operating when the lid was open, but contends that the absence of such devices did not constitute negligence on the part of respondent.

In such a tort action claimant must bear the burden of proving, not only that respondent was negligent, and that such negligence proximately caused his injury; but he must further prove that he, claimant himself, was in the exercise of ordinary care for his own safety at and immediately prior to the time of the injury. This is a fundamental principle, and one clearly required by the’ Court of Claims Law, as well as the common law of the State of Illinois. In Transamerican Freight Lines, Inc., Claimant, vs. State of Illinois, Respondent, 18 C.C.R. 93, at pages 97 and 98, the Court stated:

“The elements of proof necessary in a claim under Section 8, Par. (c) of the Court of Claims Act as amended (Ill. Rev. Stats., 1947, Chap. 37, Par. 439.8) are that claimant must prove by a preponderance or greater weight of the evidence, that the agent of respondent was guilty of negligence, which was the proximate cause of the damages sustained by it, and that claimant’s agent was in the exercise of due care at the time of the accident.”

We have considered the evidence in the record and the briefs of the parties, and note that only two persons were present at the time of the injury in question- — one was claimant, and the other Andrew Anderson, an employee of respondent.

Claimant testified that he and Mr. Anderson were working together in the laundry room, and that he took some wet clothing, which had just been washed, and placed them in the extractor, which was not equipped with a lid. He then turned on the switch, and stood with his hands resting on the upper open edge of the outer drum of the extractor while the top of the extractor was open and not covered. The basket whirled at a great rate of speed, and one of the shirts in the extractor came up the side of the whirling drum, wrapped over the fingers of his left hand and around his arm, pulled him up on top of the extractor, and tore his arm from his body.

The testimony of respondent’s employee, Andrew Anderson, conflicts with claimant’s testimony. He testified that there was a lid on the extractor, and that he closed it prior to the starting of the extractor by claimant. He further testified that at no time did he open the lid after the extractor was started, and that the only two persons present in the laundry were claimant and himself. He stated that he did not see the actual accident happen, inasmuch as he was picking up an arm load of clothes from a nearby washing machine, and had his head turned for a moment. He stated that he heard a thud behind him, and when he turned around, claimant was on top of the machine, his arm was off, and the lid on the extractor was up. He further testified that he had personally instructed claimant in the manner of using the extractor, and had specifically told him to “put the cover down before starting the machine, and leave it down until the machine had stopped”. He further testified that claimant had operated the extractor four or five times over a period of a week prior to the accident.

Although claimant contends he received no instructions in regard to the extractor, he admits spending approximately a week prior to the accident in the laundry room watching another boy operate it. He stated that, although he was operating the extractor for the first time when injured, he felt that he knew enough about its operation to run it.

This .extractor admittedly revolved at a very high rate of speed, namely, 1200 revolutions per minute, and certainly claimant knew, or should have known, that it operated at a high rate of speed from his previous observations, and knew, or should have known, that it was dangerous to place his hand in close proximity to the whirling portion while the top was uncovered and open.

If the testimony of Mr. Anderson is to be believed, it, in our judgment, would establish that claimant raised the lid, while the extractor was revolving at a high rate of speed, in violation of the instructions given him by Anderson. This would require an explanation from claimant as to his reason for doing so. In the absence of a proper explanation, we consider his conduct to be other than that of a person exercising ordinary care. Claimant’s evidence reflects no explanation of such conduct, but rather, as we said before, is in direct conflict with the witness of respondent, Andrew Anderson.

In order to find that the facts surrounding the accident were as claimant contends, we would of necessity be forced to disbelieve the testimony of Anderson. There is, in our judgment, nothing in the record reflecting upon the credibility of Anderson, who, incidently, left state employment in May of 1948, nor does his testimony lead us to believe that the facts, as testified to by him, were inherently improbable.

We see no logical reason from the evidence offered by both parties why we should give any more weight to claimant’s testimony than to that of Mr. Anderson.

In view of the above, the most which can be said for claimant’s case is that the evidence is evenly balanced in regard to the question of due care.

In such a state of the record, we find that claimant has failed to bear the burden of proof required of this essential portion of his cause of action. In Brady vs. Chaffee, 163 Ill. App. 242, at pages 245 and 246, the court stated:

“The testimony of the parties to this case is in flat contradiction on the material issues of the case. There is no room for construction, and no chance to harmonize it. One has testified to the truth, and the other has not. Each had equal means of knowing the facts about which they testified. They were equally interested in the result of the suit. Neither was impeached, and they stood before the court equal in character. There is but one means by which this court can judge of their comparative credibility, and that is the well known test of the reasonableness of their stories. Measured by that test, we are forced to the conclusion that the story told by the plaintiff in error is the more reasonable. The story told by defendant in error, that, upon her politely greeting plaintiff in error, he should, without motive, provocation, justification, or excuse, and in the vilest terms, denounce her as a woman of the lowest character to which her sex can fall, is so inherently improbable as to weigh heavily against her credibility.
On the other hand, the story of plaintiff in error is told in an apparently candid, manly way. While not over stated, it is positive andi to the point, as to facts within his knowledge, and as to such facts as he had no positive recollection about, he frankly says he bases his conclusions upon his custom and on his memoranda. There is nothing in his testimony that leaves the impression of falsity.
Assuming the two witnesses to be of equal credibility, it would still be necessary to reverse this case. An affirmative statement by one witness, met by a flat categorical denial by another, of equal credibility, does not meet the elementary requirement of the law that a plaintiff must make out his or her case by a preponderance of the evidence. Broughton vs. Smart, 59 Ill. 440; Keyon vs. Hampton, 70 Ill. App. 80; Siegmund vs. Strackbein, 140 Ill. App. 454.”

To this same effect see also Miller vs. Scandrett, 326 Ill. App. 631, at page 638; Bishop vs. Nikolas, 320 Ill. App. 681 (abstract opinion); and Caplow vs. Hershon, 331 Ill. App. 267 (abstract opinion).

In Garshon vs. Aaron, 330 Ill. App. 540, the court, in distinguishing the application of the above rule, said at page 546:

"Defendant’s next contention is that the verdict is against the manifest weight of the evidence. The only testimony in the record bearing on the condition of the railing at the time of the occurrence is that of plaintiff and defendant, Jacob Aaron. In his reply brief defendant says that assuming that plaintiff and defendant Jacob Aaron were equally credible the plaintiff therefore has placed himself in a position where he comes within the time-honored rule that a party heard in the affirmative of a proposition is required to maintain it by a preponderance of the evidence, and this can never be the case when one of two parties both equally credible makes an assertion, which is denied by the other, citing Broughton vs. Smart, 59 Ill. 440, and Northern Trust Co. vs. Parker, 205 Ill. App. 450. In the present case plaintiff’s testimony was coupled with undisputed physical facts, which in our opinion make the cases cited by defendant inapplicable.”

The record in the instant ease reflects no such physical facts, or any matters or things, which would affect the application of the above rule.

Since this claim must be denied for the above reason, it will not be necessary to further prolong this opinion by discussing the other questions raised by the pleadings and briefs of the parties. The claim is hereby denied.


text:
    (No. 4583
    Thomas P. Creamer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 24, 1954.

    Paul F. Wanless, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Thomas P. Creamer, on September 29, 1953, was leasing the following described real estate, which was situated in the County of Sangamon and State of Illinois:

The North West ¼ (N.W.¼) of Section 7, (7), Township Fifteen (15) North, Range Five (5) West of the Third Principal Meridian.

Said real estate was located on the north side of U. S. Highways Nos. 36 and 54.

On the above mentioned date, the Division of Highways was engaged in repairing the" concrete pavement adjoining claimant’s land. The repairs were confined to the north half of the pavement, or the portion of the pavement divided for westbound traffic. Portions of the pavement in said traffic lane were removed, and respondent’s agents erected barricades, and placed lighted flares, warning motorists traveling upon said highway of the repair work. The flares were placed three or four feet off of the pavement on the north shoulder of the highway. One of the flares was placed on the shoulder of the road adjoining a twenty acre field of wheat stubble and clover, which was owned by claimant. Respondent’s exhibit No. 2 clearly defines the physical layout of the fields in question, as well as the highways.

Between the hours of 3:00 and 3:30 P.M. the maintenance employees of respondent, after affixing and lighting the flares in question, went to a barricade approximately 3/16 of a mile to the west of the lighted flares, and opposite claimant’s field. While there, they discovered that the south side of claimant’s wheat stubble and clover field was afire. From the evidence, it appears that the right-of-way adjacent to the corn field, which is shown in respondent’s exhibit No. 2, was also afire for about one hundred feet. At the time a strong wind was blowing from the south. A sixty acre field of corn, which was located immediately east of the wheat stubble and clover field, was subsequently burned.

Upon becoming aware of the fire, and in claimant’s absence, his son plowed a width of four rows of corn along the westerly and southerly edges of the sixty acre field of corn. The day following the fire the easterly edge of the aforesaid corn field, adjoining the clover field, was plowed, because road repairs were still being made. Claimant testified he was afraid that another fire would be started by the flares, which were being used on the shoulder of said highway. However, there is no testimony in the record as to wind conditions on the following day. Testimony was also offered as to other rows of corn being damaged in the process of the plowing by the wheels of the tractor, and it was estimated that approximately seven acres of com were plowed under or damaged on September 29 and 30. The fire in question occurred approximately one month prior to the time that the corn would have been harvested.

There is no dispute as to the facts as to what actually occurred, which were testified to by claimant and his witnesses. However, no one saw the start of the fire, and it was suggested that it might have been started by some other means.

The Court is of the opinion that respondent was negligent in the performance of its duty to the farming-public in failing to place the lighted flares in a safe position, knowing- that the wind was blowing toward claimant’s land, and not providing a close watch to prevent the spread of fire along said right-of-way and onto said fields.

Adams vs. State of Illinois, 18 C.C.R. 212.

In regard to the question of damages, there was testimony offered on behalf of claimant that the corn damaged was worth $70.00 per acre at the time of the fire. The straw, which was left as a cover on the clover field, was valued at $8.00 per ton, and there were approximately forty tons of straw on the field. The clover, which had been planted in the wheat in March of 1953, had reached a height of about eight inches, and was to be plowed under as fertilizer in the spring of 1954. Claimant offered testimony that twenty acres of clover were completely destroyed to the point where it would have to be reworked in March of 1954. The clover was valued at approximately $20.00 per acre. Claimant’s son testified that, in his best judgment, about two and a half acres of the field were not seriously damaged.

Respondent offered no testimony in regard to the question of damages.

We have arrived at the damages, based upon the testimony offered, in the following manner:

Seventeen acres of the clover field were damaged, which at $20.00 per acre would make a total of $340.00. We have reduced the amount of damage to the clover field for the reason that approximately three acres were not damaged by the fire, and could have been plowed under, and used as fertilizer in the spring of 1954.

An award should be made for damages to the wheat straw, which was estimated to run about two tons to the acre. At $8.00 per ton, we estimate such damages at $272.00.

As to the damage to the corn by reason of plowing, an award will be made for $367.50 for the reason, that we do not believe it was necessary, or that claimant was justified in plowing the easterly edge of the com field. While it adjoined the wheat stubble and clover field, it was not plowed until the following day, because claimant felt another fire might occur as a result of the continuance of repairs to the road.

In regard to an award for the labor required to plow the field in order to prevent the spread of the fire, we are allowing an award of $22.50.

In an action to recover for injury to growing crops, the measure of damages is the value of the crops at the time when destroyed with the right of the owner to mature and harvest them at the proper time. (St. Louis Bridge Ry. Assn. vs. Schultz, 226 Ill. 409; Zuidema vs. Sanitary District of Chicago, 223 Ill. App. 138; Adams vs. State of Illinois, 18 C.C.R. 212).

We, therefore, find judgment in favor of claimant, and enter an award herewith in his favor in the amount of $1,002.00.


text:
    (No. 4597
    J. A. Ross and Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 24, 1954.

    Charles O. Loucks and Clarkson W. Loucks, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case involves a claim, which presents no conflict of either fact or law. After considering the record of the case, we find that the claim should be allowed for the amount prayed in the complaint.

Commissioner Sydney Wolfe in his report sets forth the pertinent facts, and the Court hereby adopts such report as its opinion. The report is as follows:

“Claimant, J. A. Ross and Company, by its complaint filed herein, seeks to recover from the State of Illinois, respondent herein, the sum of $1,806.50 for cinders sold and delivered to respondent during the months of January, February and March, 1953. The facts are not in dispute. Briefly stated, they are as follows: The Division of Highways of the State of Illinois issued its purchase order No. 37680 to claimant on December 3, 1952 for 7,500 cubic yards of cinders to be delivered to various yards and projects of respondent at agreed prices of $1.50 and $1.75 per cubic yard. Claimant fully complied with the terms and conditions of said purchase order, and received payment in full for all deliveries with the exception of 782 cubic yards delivered to respondent’s Glenview Yard, and 292 cubic yards delivered to respondent's Bradley Yard.
The Departmental Report filed herein clearly indicates that all deliveries were in fact made by claimant,' and delivery tickets, receipted by an authorized Division employee, were offered and received in evidence herein. Respondent’s failure to pay the balance of claimant’s claim was due to the fact that the invoices were apparently never received by the proper department of the Division of Highways, or, if received, were lost or mislaid. Because of a change of personnel in the office of claimant, failure to receive payment of the lost or mislaid invoices was not discovered until November, 1953, or almost two months after the lapse of the 67th biennial appropriations. The invoices could not, therefore, be vouchered for payment Claimant was, therefore, advised to make claim' against respondent through this Court.
Claimant, notwithstanding the admission of respondent of liability in the matter, was required to, and did make full and complete proof in this proceeding of its claim. Tire exhibits filed herein, and made a part of this report of proceeding, fully support its position.
The undersigned believes that claimant is not guilty of any negligence in rendering its invoices for the unpaid cinders, so as to bar its claim, and, therefore, respectfully recommends that claimant's claim for payment of the sum of $1,806.50 be allowed.
Dated at Chicago, Illinois, this 15th day of July, 1954.
/s/ Sydney Wolfe
Sydney Wolfe, Commissioner”

We, therefore, award claimant the sum of $1,806.50.


author: Tolson, C. J.

text:
    No. 4608
    St. Joseph Cemetery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 24, 1954.

    Gerard A. Koch, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Tolson, C. J.

St. Joseph Cemetery filed its claim on February 10, 1954 for reimbursement for cartage and installation charges for 57 government markers.

The record consists of the complaint, Departmental Report, stipulation in lieu of evidence and brief.

The Departmental Report indicates that 105 markers were installed. A claim for installing 48 markers was approved for payment from funds appropriated by the 68th General Assembly, but the claim for the remaining 57 markers was denied due to statutory limitations, as the markers were erected during the previous biennium.

The claim for installing a marker at the grave of one Rudolph E. Yuriga was previously denied in an order issued by this Court on the 17th.day of March, 1954, for the reason that the decedent was a peace-time soldier.

As to the remaining 56 markers, the claim is proper.

By repeated decisions of this Court, it has been held that, where the facts are undisputed that the State has received supplies ordered by it in accordance with due authority, has used the same, and the bill therefor was not paid before the lapse of the applicable appropriation, an award for the amount may be made. (Shell Petroleum Co. vs. State of Illinois, 7 C.C.R. 224, Shonkwiler vs. State, 11 C.C.R., 602, and other cases.)

An award is, therefore, entered' in favor of claimant, and allowed in the amount of $560.00.


text:
    (No. 4613
    The S. S. White Dental Manufacturing Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 24, 1954.

    Sol L. Hubwitz, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant, the S. S. White Dental Manufacturing Company, A Corporation, seeks to recover the sum of $685.75 for dental equipment furnished the Illinois Soldiers’ and Sailors’ Home of Quincy, Illinois, a Division of the Department of Public Welfare of the State of Illinois.

The record consists of the complaint, amended complaint, certain motions, a Departmental Report, Supplemental Departmental Report, stipulation in lieu of evidence, and motion and order granting a waiver of briefs and arguments.

The facts of the case are as follows:

On April 23, 1953, claimant shipped a laboratory type engine and Doriot handpiece to the Illinois Soldiers’ and Sailors’ Home, Quincy, Illinois, and on June 29, 1953, claimant shipped a Pelton autoclave and cabinet sterilizer to the said home.

Both sales were made in the ordinary course of business in full compliance with the rules and regulations of the Department of Public Welfare. The Departmental Report indicates that the claim in the amount of $699.46 was not honored, because it included an amount for state sales tax; and, in addition thereto, the invoices were not received until November 2, 1953.

It appears, therefore, that the appropriation for the 67th biennium had lapsed, but there were sufficient unexpended funds in the account to pay the claim, had it been received in apt time.

The stipulation and Departmental Reports indicate that the claim is just and proper, but that it should be reduced to the sum of $685.75 in order to exclude the state sales tax.

An award is, therefore, made to claimant in the sum of $685.75.


text:
    (No. 4631
    Town of Cicero, a Municipal Corporation of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 24, 1954.

    Nicholas Berkos and A. M. Mysogland, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Town of Cicero, seeks to recover the sum of $5,660.78 for labor and materials furnished the Division of Highways of the State of Illinois.

The record consists of the complaint, certain motions, Departmental Report, Supplemental Departmental Report, and a stipulation that the Reports of the Di- , vision of Highways shall constitute the record in this proceeding.

The facts of the case are as follows:

On June 16, 1952, the Town of Cicero entered into an agreement with the State of Illinois, Department of Public Works and Buildings, Division of Highways, to maintain, repair and clean certain highways of the State of Illinois; and to clean catch basins, remove snow and ice, and black top certain portions of the road. The contract referred to herein is authorized under the provisions of Sec. 296D of Chap. 121, Ill. Rev. Stats.

The Departmental Report indicates that the necessary vouchers were not filed with the Division of Highways until after September 30, 1953, at which time the appropriation for the 67th biennium had lapsed, and it was not possible to pay the invoice in the normal course of business. It further states that funds existed in the appropriation from which claimant’s invoices could have been paid, but, due to oversight or neglect on the part of the Town of Cicero, the claim was not presented in apt time.

There does not appear to be any dispute but what the labor and materials were furnished in accordance with the contract, and it does appear from the said Report that the charge is due and owing, and should be paid.

An award is, therefore, made to claimant in the sum of $5,660.78.


text:
    (No. 4637
    Bennie Truitt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 22, 1954.

    Fred P. Schuman, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On July 31, 1954, Bennie Truitt filed his complaint against the State of Illinois, in which he seeks damages in the amount of $150,000.00 for wrongful incarceration in the Illinois State Penitentiary.

On August 17, 1954, the State of Illinois filed a motion to dismiss the complaint for the reason that it failed to state a cause of action. On October 1, 1954, claimant filed his objections to the motion to dismiss, and the matter is now before the Court as a question of law.

In his objections to the motion to dismiss, claimant alleges that it would appear from the court order attached to the complaint that he was not represented by counsel in a murder case, nor did the court hear evidence in aggravation or mitigation. He further alleges that his confinement was unlawful, and that this case is not predicated on a charge of “false imprisonment”. Claimant cites Sec. 730, Chap. 38, Ill. Rev. Stats., as an authority for this Court to make an award.

“Whenever it shall appear to the court that a defendant or defendants indicted in a capital case is or are indigent and unable to pay counsel for his or her defense, it shall be the duty of the court to appoint counsel for his or her defense.
Every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense.”

It is to be noted that Bennie Truitt was convicted on July 31, 1914. The Illinois Revised Statutes of 1913 were the laws of the State of Illinois at that time, and Sec. 442 (now 730), Chap. 38 thereof, reads as follows:

“Every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense.”

It is, therefore, apparent that the law stated in the first paragraph above was not in effect in 1914, and, in fact, was not added to Sec. 730 until 1929.

As to the second point urged by claimant, Sec. 732, Chap. 38, Ill. Rev. Stats., reads as follows:

“In cases where the party pleads 'guilty' such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; after which, if the party persists in pleading ‘guilty’, such plea shall be received and recorded, and the court shall proceed to render judgment and execution thereon, as if he had been found guilty by a jury. In all cases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offense.”

The order referred to in plaintiff’s exhibit A recites a tender of counsel, a refusal of counsel, a plea of guilty, an admonishment of the consequences of the plea of guilty, a persistence of the plea of guilty, and that “the court now hears all evidence that is offered”.

In the case of People vs. Gerke, 332 Ill. 583, at page 584, the court said:

“Where the record shows that a defendant, before pleading guilty, was admonished by the court as to the effect of such plea, and the punishment which might be inflicted, it is not necessary that it show affirmatively that the court heard witnesses as to matters in mitigation or aggravation of the offense. (People vs. Ellsworth, supra; People vs. Harney, 276 Ill. 236.) The examination of witnesses as to the aggravation and mitigation of the offense in cases where a defendant pleads guilty is a privilege, which may be waived by the parties, and some other method of supplying the court with the necessary information be substituted in its stead.”

The present record indicates that the court heard “some evidence”, and the presumption will be indulged in that the court did its duty.

Three cases of a similar nature have been presented to the Court of Claims, and in each case an award has been denied. In the case of Montgomery vs. State, No. 4264, filed on January 8, 1952, the Court held:

“The facts in this case show that the claimant was sentenced by a court of competent jurisdiction. For tin's Court to review evidence to overmle a decision of that court, without a statute authorizing it to do so, would be to assume jurisdiction never contemplated. This Court, without a statute authorizing it to award damages in such a case, cannot assume jurisdiction.”

In the case of Marcinkiewicz vs. State, No. 4378, filed January 8, 1952, the Court followed the decision of the Montgomery case, and dismissed the complaint.

In the case of Gee vs. State, No. 4575, filed February 26, 1954, a motion of the state to dismiss the complaint for failure to state a cause of action was allowed, and the Court held that, where the writ was valid on its face, neither the state nor the warden of a penitentiary could be held liable for false imprisonment.

This Court cannot see any distinction between “false imprisonment” and “wrongful incarceration”, as it applies to the three cases cited and the present complaint.

For the reasons above stated, the motion of respondent to dismiss the complaint should be allowed.

It is, therefore, the order of this Court that this cause be, and is hereby dismissed.


text:
    (No. 4629
    New Hampshire Fire Insurance Company, A Corporation; and Granite State Fire Insurance Company, A Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1954.

    Arrington and Healy, Attorneys for Claimants.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Fearer, J.

On June 4, 1954, a complaint was filed in this Court. It consisted of two separate counts, and sought an award to reimburse claimants for certain overpayments of privilege tax imposed under the provisions of the Illinois Insurance Code (Chap. 73, Sec. 409 (1), Par. 1021 (1), Ill. Rev. Stats.).

Respondent has filed a motion to strike and dismiss claimants ’ complaint, and briefs have been filed thereon.

Under the provisions of the Illinois Insurance Code, a privilege tax for the year 1952 was assessed against each of the claimants for the privilege of doing business in the State of Illinois. The tax was computed by applying the tax rate of 2% to the amount of net taxable premiums received by each of the claimants from the sale of fire insurance in the State of Illinois.

Under the provisions of Sec. 409 (2) of the Illinois Insurance Code (Chap. 73, Par. 1021 (2), Ill. Rev. Stats.) claimants were authorized to deduct from the amount of their respective premium privilege taxes all sums paid to municipalities for the benefit of organized fire departments under the provisions of Art. 38, Sec. 1 of the Cities and Villages Act (Chap. 24, Par. 38-1, Ill. Rev. Stats.).

Claimant, New Hampshire Fire Insurance Company, by reason of a clerical error inadvertently failed to include or report as such a deduction on its 1952 privilege tax statement a payment in the amount of $2,728.91 made to the City of Chicago under the provisions of the Cities and Villages Act, hereinabove referred to, and Chap. 131-2 of the Municipal Code of Chicago.

Claimant, Granite State Fire Insurance Company, by reason of a clerical error inadvertently failed to include or report as such a deduction on its 1952 privilege tax statement a payment in the amount of $743.11 made to the City of Chicago under the aforesaid provisions of the Cities and Villages Act and Municipal Code of Chicago.

There is no question but what claimants mistakenly computed, and paid to the Department of Insurance such privilege taxes. They are now seeking a refund of the overpayments made in the amounts hereinbefore specified, or credit memorandums, which might be used in payment of privilege taxes assessed in the future.

Exhibits have been attached to the complaint setting forth in detail the clerical error referred to, and the amount of the refund that both claimants contend they are entitled to recover from respondent.

This Court had occasion to pass upon the same question in the case of Bankers and Shippers Insurance Company of New York, Claimant, vs. State of Illinois, Respondent, No. 4559, opinion filed May 11, 1954, in which an award was denied for overpayment of privilege taxes. The Court, in its opinion, stated that it found no statute covering overpayments voluntarily made to respondent, and that no authorities were cited, nor could they find any authority authorizing this Court to refund taxes voluntarily paid under a mistake of fact.

The Court’s jurisdiction is limited as set forth in Chap. 37, Sec. 439.8, Ill. Rev. Stats. By an amendment to the Court of Claims Act in 1945 this Court no longer has jurisdiction of questions of equity and good conscience, which seems to be the basis for former decisions cited in this case, all of which were prior to the last amendment to the Court of Claims Act.

Respondent’s motion to strike and dismiss the complaint was predicated upon the insufficiency of the allegations to state a cause of action. Paragraph one of the motion sets forth the assessment and voluntary payment of the privilege taxes by claimants for the year commencing July 1, 1952, and further sets forth that claimants did not pursue their remedy, as provided by the protest statute, namely, Chap. 127, Par. 172, 1951 Ill. Rev. Stats., which respondent contends is a bar to the present action under the decision of this Court in the case of Great American Insurance Gompany vs. State of Illinois, 19 C.C.R. 91.

Paragraph two of the motion sets forth the section of the statute in regard to the computation and payment of privilege taxes to the Department of Insurance of the State of Illinois.

It is contended in paragraph 3 that, in failing to compute said tax deductions properly, claimants made a voluntary overpayment, and in this regard refers to this Court’s opinion in the case of Bankers and Skippers Insurance Company of New York vs. State of Illinois, No. 4559, opinion filed May 11, 1954.

Counsel for claimants in their brief call this Court’s attention to points and authorities, and discuss them separately. In point A reference is made to the “protest statute”, and the case cited by respondent, Great American Insurance Company vs. State of Illinois, 19 C.C.R. 91. It is claimants’ contention that the factual situation and theory of recovery were completely different from the case at bar, and,- furthermore, that the rules of law applied to the reasoning of the Court in reaching its decision in that case are wholly inapplicable to the present case. We do not believe it necessary to discuss at length claimants’ contention and comparison between their claims and the claim of Great American Insurance Company, wherein the Court denied the award for the reason that the Great American Insurance Company did not follow the “protest statute”, and for other reasons not germane to the present case. However, voluntary payments were made in the present case, and also in the Great American Insurance Company case to the Department of Insurance, and the funds were transmitted immediately to the State Treasurer.

In the present case claimants’ counsel strenuously contend that, since their mistake was a mistake of fact or clerical error, as distinguished from a mistake at law, the “protest statute” was not available to them, and does not afford a remedy to taxpayers, who overpay their taxes through clerical errors.

There is’ no question in our minds but that the overpayment was the result of a mistake of fact, which resulted from a clerical error.

Secondly, claimants’ comment pertains to their rights to deduct from their privilege taxes payments made to Cities and Villages for the benefit of organized fire departments, and contend that their failure to deduct said payments in no way renders their complaint insufficient in law.

Under paragraph c of the brief and argument in answer to respondent’s motion, claimants comment on this Court’s opinion in Bankers and Shippers Insurance Company of New York vs. State of Illinois, No. 4559, which was cited by respondent in its motion, and assert that this Court was not properly advised as to the law, when that decision was handed down. In particular, they quote from the opinion, as follows:

“There is no statute covering overpayments voluntarily made to respondent, and no authorities have been cited, nor can we find any authorities authorizing the Court to refund taxes voluntarily paid.
For the reasons assigned, an award to claimant must be, and is hereby denied.”

In their brief claimants contend that this Court was misled, and inadvertently denied an award to Bankers and Shippers Insurance Company of New York.

Further reference is made in the brief to the general rule propounded and followed by this Court, and other courts of this state, wherein the general rule is quoted as being that, in the absence of a statute, a tax which is paid voluntarily, and not under duress or compulsion, cannot be recovered. Firemen’s Insurance Company of Newark, New Jersey vs. State, 2 C.C.R. 220 (1914); People ex rel Eitel vs. Lindheimer, 371 Ill. 367; People ex rel City of Highland Park, 380 Ill. 447. Claimants follow by stating the exception to the rule, the overpayment of taxes being recoverable when the overpayment is made by a mistake of fact. Firemen’s Insurance Company of Newark, New Jersey vs. State (supra); Importers and Exporters Insurance Company of New York vs. State, 5 C.C.R 1 (1914); W. S. Hennessey Company vs. State, 9 C.C.R. 150 (1936). They then claim that the present case comes within the exception to the general rule.

Claimants go to great length in citing in their brief a long line of decisions of this Court regarding overpayment of taxes through mistake of fact, and also cite cases on excessive payments of registration fees, license fees, franchise taxes, and other assessments by the state.

The following cases are ones in which a tax or fee was overpaid through clerical error or mistake, and in each case an award was granted the claimant on the theory that such an overpayment was recoverable, because it was made through a mistake of fact:

Moorman Manufacturing Co. vs. State, 8 C.C.R. 106
Hill vs. State, 8 C.C.R. 174
Lake Street Memorial Park vs. State, 8 C.C.R. 190
Rossia Insurance Co. of America vs. State, 8 C.C.R. 203 (1934)
St. Louis Cotton Compress Co. vs. State, 8 C.C.R. 209 (1934)
Monaster and Bros. vs. State, 8 C.C.R. 533
Aluminum Oar Company vs. State, 9 C.C.R. 232 (1936)

In fact, all of the Court of Claims cases cited were decided prior to the amendment to the Act in 1945. By the amendment, our right to decide cases on questions of equity and good conscience was eliminated, and it would require an act of the Legislature to permit this Court to enter or make an award to claimants, who have voluntarily made overpayments of taxes, fees, licenses or fines through a clerical error, or any other mistake of fact. In this regard, we wish to reiterate, as was pointed out in our opinion in the Bankers and Shippers Insurance Company case, that, in the absence of a statute covering overpayments voluntarily made through clerical error, or otherwise, covering taxes, fees, licenses, fines, etc., all claims of this kind will have to be denied.

Claimants argue at great length, and seem to he relying materially on the case of Eureka-Maryland Assur ance Corporation vs. State, 12 C.C.R. 418, wherein the state filed a motion to strike, which was overruled. The case proceeded to trial. A supplemental opinion appears on pages 422-425, wherein an award was made to claimant in 1943 for an overpayment under a reciprocal agreement with the State of Maryland for the collection of fees of foreign insurance companies doing business in both states. At the time the fee was paid, both states had a $300.00 license fee. The claimant, Eureka-Maryland Assurance Corporation, paid, prior to the due date, a $300.00 fee. Prior to July first, and at the time the fee was due, the State of Maryland had changed its law reducing the fees to $10.00. The claimant filed its claim in the Court of Claims seeking to recover the difference, or $290.00. The money in that case was transferred before it was due to the State Treasurer.

From page 421 of the opinion, we quote:

“The Court will grant the tax was voluntarily paid, but not with full knowledge of the facts, as claimant was not in a position to know that the State of Maryland would change its law prior to the beginning of the tax period, or July 1st. A case of this kind is entirely different than one where a yearly franchise fee is paid, and, subsequent to the beginning of the period in question, the fee is raised or lowered by statute, or where an assessment is made, and remedies are provided for the taxpayer to protest against his assessment.
This Court has repeatedly decided that there must be some basis in law or equity on which to base its award, rather than on the broad principle of equity and good conscience.
The Court is of the opinion that, where a franchise fee is paid before it is due, and is subsequently reduced before it is legally due and payable, a refund for the excess payment should be made to the taxpayer."

On page 420 of the opinion, the Court said:

“Often the courts are powerless to give relief, even though tire claim is equitable, because of the absence of statutory authority."

From the supplemental opinion appearing on page 423, we quote:

“This Court has, however, been consistent in holding that, where taxes are paid under a mistake of fact, the same are recoverable.”

The Court in that case, even though there was no statutory authority, entered an award based purely upon equity and good conscience, even though they were of the opinion that there should be some basis for entering an award other than for equity and good conscience. However, the Court was perfectly justified in that case to make such an award by reason of the overpayment by mistake of fact, because the Court had the right at that time to decide cases on such questions in the absence of statutory authority.

A dissenting opinion appears on page 425, citing-cases, and contains this statement:

“The law is well settled that a tax voluntarily paid cannot be recovered in the absence of a statute authorizing such recovery. * * * Furthermore, this Court has held in a long line of decisions that an award cannot be made solely on the basis of equity and good conscience, and can be made by this Court only where claimant would be entitled to redress against the state, either at law or in equity, if the state were suable.”

After rexdewing all of the cases cited, particularly those prior to 1945, and finding no cases or authority subsequent to the amendment to our present Act, and in the absence of any statutory authority covering over-payments for fees, licenses, taxes, etc., made by mistake of fact, for that reason, and for other reasons assigned herein, and based upon our decisions in cases cited, and other decisions cited similar to the question before the Court since the Act was amended in 1945, an award to claimants must be, and hereby is denied.


text:
    (No. 4540
    Lucille J. Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 29, 1954.
    Daniel F. Zahn, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On May 19, 1953, an amended complaint was filed by claimant against the State of Illinois for property damage to her automobile and personal injuries in a total amount of $732.37.

Respondent failed to plead to the amended complaint. Therefore, Rule 11 of this Court is applicable, and it is, therefore, considered that a general denial of the facts set forth in the amended complaint was filed.

The Commissioner filed his Report on February 4, 1954, and on the same day filed a note of explanation, wherein it was called to the Court’s attention for the first time that the amended complaint was insufficient in that it did not contain allegations to the effect that claimant was the only person interested in the claim, and that no assignment or transfer of the claim, or any part thereof or interest therein, had been made, as required by Chap. 37, Sec. 439.11, Ill. Rev. Stats., nor does the amended complaint comply with Rule 5 (b) of the Rules of the Court of Claims, as claimant in her complaint did not satisfy the requisites of petition, as prescribed by Statute and Eules of the Court of Claims, contending that this question would be jurisdictional.

The action is predicated upon an accident, which occurred on November 17, 1952. On page 32 of the transcript claimant testified that she had not released or given a covenant, and had not received any payment on account of property damage or personal injuries. Under the circumstances, we are ordering a delay in the entry of this opinion until November 18, 1954, or until an amendment to the amended complaint is filed, complying with the Statute and Eules of this Court hereinabove referred to.

The evidence in this case establishes that on November 17, 1952, at or about the hour of 1:00 P. M., claimant owned a 1949 Pontiac Tudor Sedan, which was being driven by her son, William H. Miller, in an easterly direction on U.S. Route No. 40, approximately three miles east of Marshall, Illinois, and at said time and place claimant was riding in the rear seat of the automobile. The State of Illinois on said date spread on the east bound traffic lane a light film of oil with a paraffin base for the protection of the highway. The time at which the work was done does not clearly appear in the record.

It is clearly established that the accident occurred on a decline, which was approximately 250 to 300 feet from the top of the grade to the bottom. Claimant’s son was driving between 50 to 55 miles an hour, and was traveling from 100 to 150 feet behind an automobile owned and driven by Mr. Leon Best of Robinson, Illinois, who in turn was following an automobile driven by a Mr. Odlinger. As claimant’s son started to descend the hill on the south side of the highway, he noticed a car ahead of him zigzag down the highway, as though it was out of control. The testimony disclosed that the Odlinger car had first gone out of control, as it proceeded the Best automobile. When claimant’s son noticed the two cars were out of control, he applied his brakes, but it, too, went out of control, and all three cars came together near the bottom of the hill. Claimant’s car was in the middle between the Odlinger and the Best cars, and was facing in a northeasterly direction. All three automobiles were considerably damaged. This testimony is established by claimant, her son, and the drivers of the other two cars, all of whom testified that, upon alighting from their cars, they found the highway to be in á slippery condition, which had not been apparent to them. This was due to the fact that a light film of oil had been spread upon the highway, which was slightly darker than the color of' the concrete pavement. Their testimony is further corroborated by Howard C. Reynolds, a state policeman, who was called to the scene of the accident. His car also skidded on the slippery pavement.

As to the question of negligence in warning traffic traveling in an easterly direction within this short stretch of road, which was approximately 300 feet in length, . claimant, her son, the police officer, and Mr. Best all testified that there were no cautionary signs, highway trucks or State Highway employees to call their attention to the hazardous condition of the road, because of the oil treatment; nor did they at any place on this highway encounter a like condition, which would have warned them that state employees were working on the highway, and that such work created a hazardous condition. The testimony that the substance in question would dry within a period of two hours when the humidity was low and no moisture formed on the concrete was further substantiated by the Departmental Report. The evidence disclosed that it was a bright, sunshiny day, and the temperature was approximately 70°, but the record is silent, and there is no explanation made by respondent, as to when the substance was applied.

The only evidence offered by respondent was the Departmental Report, and the testimony of an employee of the state by the name of Howard Jackson, who was on said date employed by the Maintenance Division of the State Highway Department. He testified that the scene of the accident was within his territory, but that the application of the oil solvent was made by the Day Labor Department, which has its headquarters in Springfield, and that the Maintenance Supervisor furnished men to assist in doing this work. He testified the solvent was spread on one lane of traffic at a time, which left the other lane open for traffic, which was the fact in this case. He further testified a flagman was used at each end of the particular area being treated for the protection of traffic, and signs bearing inscriptions “Road Repairs Ahead” and “One Way Traffic” were placed on the shoulders to each of the already treated areas. The material parts of the Departmental Report do not throw too much light on the situation.

Claimant, her seventeen and a half year old son, who was driving, Mr. Best, whose car was ahead of claimant’s car, and the highway policeman testified that this was the only area from Marshall to the scene of the accident wherein a solvent was spread on the road. They further testified that there were no warning signs, such as “One Way Traffic”, “Road Repairs Ahead”, or any other cautionary signs, which would have warned traffic traveling in the east bound traffic lane that, because of the application of the solvent on the road, it was in a hazardous or dangerous condition, which would necessitate traffic to proceed at a slower speed, and which would have protected motorists traveling upon said stretch of highway.

There was no evidence that a flagman had been placed at either end of the area where the work was in progress, other than that, after the accident occurred, a flagman was sent to the top of the hill to warn traffic of the hazardous condition, and of the wrecked cars on the highway. The highway officer, who arrived at the scene of the accident sometime thereafter, said that the cars had been moved onto the shoulder, and that the flagman was not actively engaged in warning traffic; and, furthermore, that his car skidded in the same area.

Extensive briefs were filed by both respondent and claimant’s attorney pertaining to questions of negligence, contributory negligence, proximate cause and burden of proof. Cases were cited from the Illinois Supreme Court Reports, Appellate Court Reports, and former decisions of this Court. We do not believe it necessary to discuss the authorities cited, as this case can be decided on purely questions of fact. Three questions are present in this case, namely, (1) Was claimant, or her son, and particularly claimant, guilty of contributory negligence; (2) Was the State of Illinois guilty of negligence in failing to warn motorists traveling upon the highway of the repair work, and of the oil substance or solvent present on the highway, which would make traveling upon that particular portion of the highway hazardous; and, (3) What damages were sustained.

We believe that claimant has proven by a preponderance or greater weight of the evidence that she was free from any contributory negligence, and that her son, the driver of the car, was not guilty of negligence in the operation of the car just prior thereto and at the time of the accident. We further believe that claimant has proven by a preponderance of the evidence that it was the negligence of the agents of respondent in failing to warn traffic in this particular area of the hazardous condition of the highway, which was the proximate cause of the accident in question. We further believe that claimant suffered damages, which we will hereinafter discuss. We express this opinion based upon the evidence in this case, being cognizant of the fact that the State of Illinois is not an insurer of the safety of all persons traveling upon its highways. However, it is the duty of the agents, officers and servants of the State of Illinois to warn motorists of any hazardous condition, which would not be apparent to them while driving.

We must also take into consideration that it is the law of this state that a person confronted with a sudden danger is only required to exercise ordinary care, which would be used by an ordinarily careful person, taking such danger, if any, into consideration.

We do not believe it necessary to discuss at length the question of damages. Claimant is asking first for refund of monies expended for the towing and the repairing of her car, as well as telephone and transportation expenses, which were incurred as the result of the damages to her automobile. The testimony of claimant and the exhibits reveal that the cost of the repairs to her car was in the sum of $554.67; transportation costs, $48.88; telephone bills, $15.70, making a total for property damage and incidental expenses of $619.45. As to personal injuries, claimant testified that she had had a former injury to her back in the sacroiliac region, and that the jarring and resulting fall to the floor, when the accident occurred, aggravated the disc injury, so that she was unable to work for four days, and was troubled by her back until May of 1953. There was no medical testimony offered, nor have any examinations been made, or did anyone testify as to the former injury, its seriousness, and whether or not there was any aggravation. Due to the fact that claimant was a supervisor of nurses in a hospital in Cleveland, Ohio, where she lived, she said she did not have any doctor bills. However, she testified to the purchase of medicines in the amount of $28.80. We are unable to determine from the record, other than self-serving declarations, anything in regard to the back injury, or the necessity for the purchase of medicines, and also the loss of wages for four days.

We are, therefore, declining the award for personal injuries, and are limiting the award to property damage and incidental expenses, i.e., telephone bills, transportation to Cleveland, Ohio, and transportation necessitated iii having the automobile repaired, which is a total claim in the amount of $619.45.

We, therefore, enter a total award to claimant, Lucille J. Miller, in the amount of $619.45.


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    (No. 4571
    Alvin C. Feil, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1955.

    Donovan, Sullivan, Jeffers and Breen, Attorneys for Claimant.
    ' Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

Claim for damages in the amount of $2,438.80 is sought herein by claimant, Alvin C. Feil, the owner of a hog farm, known as El-Bar-Dee Farms, located near Elgin, Illinois. Said amount allegedly represents the value of certain hog feed, which claimant destroyed pursuant to orders of the Superintendent of the Division of Livestock Industry, Department of Agriculture, State of Illinois, in accordance with the statutes of the State of Illinois relating to diseased animals, Pars. 168-191, Chap. 8, Ill. Rev. Stats., (1951 State Bar Association Edition).

The evidence establishes that in August of 1952 claimant’s hogs became infected with vesicular exanthema, a contagious disease, and the Superintendent of the Division of Livestock Industry placed a quarantine on claimant’s farm because of the disease, within the terms of the above statute, and ordered claimant to destroy both the hogs and the feed therefor.

The above statute provides that the state may reimburse the owner of such destroyed feed and hogs, and Sec. 172, Chap. 8, Ill. Rev. Stats., (1951 State Bar Association Edition) provides the means for determining* the amount of reimbursement to be made by the State of Illinois. It reads as follows:

“172. Appraisal — Destruction of animals or property. § 5. When the Department determines that any animal is affected with, or has been exposed to, any contagious or infectious disease, it may agree with the owner upon the value of the animal or of any property that it may be found necessary to destroy, and in case such an agreement cannot be made, the animals or property shall be appraised by three competent and disinterested appraisers, one to be selected by the Department, one by the claimant, and one by the two appraisers thus selected. The appraisers shall subscribe to an oath in writing to' fairly value such animals or property in accordance with the requirements of this act, which oath, together with the valuation fixed by the appraisers, shall be filed with the Department and preserved by it.
Upon the appraisement being made, the owner shall immediately destroy the animals, dispose of the carcasses thereof, and disinfect, change or destroy the premises occupied by the animals, in accordance with rules prescribed by the Department governing such destruction and disinfection, and upon his failure so to do, the Department shall cause such animals or property to be destroyed and disposed of, and thereupon the owner shall forfeit all right to receive any compensation for the destruction of the animals or property.”

On October 1, 1952, appraisers were selected in accordance with the terms of the above quoted section of the statute. They examined and appraised the hogs, but did not, however, appraise the hog feed at the same time.

After disposing of the hogs pursuant to orders of the Division of Livestock Industry, for which he was compensated in accordance with the aforesaid appraisal, claimant, on or about November 7, 1952, procured an appraisal of the hog feed remaining on his farm by one appraiser, namely, Boy E. Anderson, who had been the appraiser selected by claimant. He then destroyed the feed, and filed his claim, as certified by his appraiser, for reimbursement under the statute for the hog feed so destroyed. The amount of the appraisal was $2,438.80.

Payment on this claim was refused by the Division of Livestock Industry for the reason that the statute had not been complied with by claimant in that the prescribed method of appraisal required by the statute was not followed.

It is claimant’s contention that respondent, by its conduct in the matter, has waived the portion of the statute requiring the appraisal to be conducted by three appraisers. Claimant contends that Mr. James C. Craven, legal advisor to the Department of Agriculture, informed his attorney that he would be compensated for the feed, which he had been ordered to destroy. Claimant further bases his position upon the fact that he, claimant, called the attention of the appraisers selected by the Superintendent of the Division of Livestock Industry to the hog feed located on the farm in order that they might malee an appraisal thereof, and that, despite this fact, said appraisers, so selected by the Superintendent of the Division of Livestock Industry, failed to appraise the feed, and that, after waiting approximately five weeks for such an appraisal to be made, claimant was forced to destroy the feed in order to put his hog farm back into operation.

It appears to the Court that the sole question involved herein is whether or not the above facts relied upon by claimant constitute a waiver on respondent’s part of that portion of the statute prescribing a particular method of appraisal. It is respondent’s contention that such facts do not constitute such a waiver, and that claimant voluntarily and knowingly departed from the mandatory appraisal procedure set forth in the statute.

It appears from the evidence that claimant, at the time the hogs were appraised, was advised by Dr. A. E. Cameron of the Division of Livestock Industry, and Dr. George W. Hess of the U. S. Bureau of Animal Industry, two of the three appraisers, that it would be necessary for the hog feed to be appraised at a later date. This fact claimant in his testimony admits. It appeared that the appraisal could not be made on the same date as the hogs were appraised in view of the fact that these appraisers were busily engaged at other premises, due to the existence of the epidemic of vesicular exanthema in the area.

It further appears from the evidence that at no time between the date of the appraisal of the hogs and the destruction of the feed by claimant, some five weeks later, did he make any effort to officially notify the Department of Agriculture or the Division of Livestock Industry of the fact that no appraisal of the feed had been made, nor did he inform such Department or Division that, unless an appraisal was made, he would be compelled to destroy the feed, and make a claim therefor upon the state.

We believe it was his duty to do so, if he intended to take advantage of the provisions of the statute allowing compensation for the destruction of such feed. Certainly he would not be required to wait indefinitely for such an appraisal, but, at the very least, it was his duty to inform the Department of the situation.

Claimant in his brief and argument infers from the testimony of one of his witnesses that Mr. James C. Craven, legal advisor to the Department of Agriculture, had assured claimant’s attorney that claimant would be compensated for the feed, which he had been so ordered to destroy, and that claimant relied upon such assurance. It is respondent’s contention with respect to claimant’s position that not only did the said James C. Craven lack authority to make the alleged promise, but that the Division itself would lack the authority to make a promise to pay compensation in any manner not provided by the statute.

In this regard, we believe respondent is basically correct. It is fundamental that anyone dealing with an officer or agent of the state is bound to ascertain the extent of the authority of such officer or agent to bind the state, and must take notice of the statutory provisions bearing on the matter in issue. Root vs. State, 12 C.C.R. 144; Lord and Bushnell Co. vs. State, 13 C.C.R. 189; Dutton vs. State, 16 C.C.R. 64; Illinois Central Rail road Company vs. State, 18 C.C.R. 214; Illinois Central Railroad Company vs. State, 10 C.C.R. 493; Harbeck vs. State, 13 C.C.R. 70. Clearly, Mr. Cravens ’ promise, if he made it, was- contrary to the method of arriving at the valuation of said feed required by the statute. The Constitution of the State of Illinois specifically precludes the payment of any claim by the state- under any agreement or contract made without express authority of the law, and, therefore, payment under such a promise would be barred by Sec. 4 of Article XIX of the Constitution. Illinois Central Railroad Company vs. State of Illinois, 18 C.C.R. 214.

We further note that the testimony concerning the conversation with Mr. Craven did not reflect that Mr. Craven said to anyone that the appraisal requirement would be waived, nor was any agreed price for the feed entered into. The extent of' such conversation was that the farmers would be compensated for the feed, if it was necessary to destroy it. This conversation seems to us to not be inconsistent with the requirement of an appraisal under the statute, and claimant, if he relied upon such conversation as waiving the statutory requirement, took considerable for granted. Even if there could be a waiver of the statutory requirement governing appraisals, we could not on this evidence find that such a waiver had been made.

Claimant further contends that his rights under the due process clause, contained in the Fourteenth Amendment of the United States Constitution, and Art. II of Sec. 2 of the Illinois Constitution of 1870, have been violated by the state proceeding under this statute, and further that claimant’s private property has been taken without just compensation therefor, thus violating Sec. 13 of Article II of the Illinois Constitution of 1870. We believe both of these positions are without merit, since the statute involved herein is clearly within the police power of the State of Illinois, and the reasonable exercise thereof by the Legislature in enacting said statute. Durand, Et Al vs. Dison, Et Al, 271 Ill. 382; City of Chicago vs. Bowman Dairy Co., 234 Ill. 294.

Claimant’s right for compensation for the destroyed feed from respondent lay solely within the statute. The terms of the statute were not complied "with, nor did claimant follow a reasonable course in attempting to obtain compliance from the state.

It is, therefore, the judgment of this Court that claimant’s claim should be, and is hereby denied.


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    (No. 4589
    John Davis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1955.

    Arrington and Healy and John G. Poust, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case is before the Court on a motion of respondent to dismiss the amended complaint filed herein by claimant, John Davis, for the reason that said claim is barred by Chap. 37, Sec. 439.22, Ill. Rev. Stats., in that said claim was not filed with the Clerk of the Court within a period of two years after the cause of action first accrued.

The record before us consists of the amended complaint, respondent’s motion to strike and dismiss claimant’s amended complaint, suggestions in support of said motion, claimant’s suggestions in opposition to respondent’s motion to strike claimant’s amended complaint, and respondent’s motion to strike and dismiss claimant’s suggestions in opposition to respondent’s motion to strike and dismiss the amended complaint. .

The claim was originally filed by claimant herein with the Clerk of the Court of Claims on December 1, 1953. The amended complaint was filed on June 30, 1954. Both the original claim and the amended complaint are based upon an accident, which occurred on May 25, 1951, as a result of which claimant, John Davis, who was at said time an inmate in the Illinois State Penitentiary at Joliet, Illinois, suffered personal injuries. While operating a certain machine, known as a wool cording machine, claimant’s shirt sleeve became entangled, and his right hand was drawn in between the rollers. It was crushed and mangled to such an extent that it became necessary to amputate said hand and part of the lower arm immediately thereafter at the prison hospital. Claimant charges that the injury was sustained because of the absence of safety guards and safety devices to stop the wool cording machine instantly, and other acts of negligence on the part of respondent. Claimant prays damages against respondent in the amount of $7,500.00. On March 19, 1954, upon expiration of sentence, claimant was discharged from the penitentiary.

As stated above, respondent’s motion to dismiss is based upon the grounds that the statute of limitations contained in Sec. 22 of the Court of Claims Act, being Chap. 37, Sec. 439.22, Ill. Rev. Stats., (1951 State Bar Association Edition), has run against claimant in that his Cause of action accrued on May 25, 1951, and the original complaint was not filed until December 1, 1953, being more than two years subsequent to the alleged date of injury. Sec. 22 of the Court of Claims law provides as follows:

“Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons, and persons under other disability at the time the claim accrues two years from the time the disability ceases; provided, that any officer or enlisted man in the National Guard, Naval Reserve or Illinois Reserve Militia who sustained an injury to his property, arising out of and in the course of active duty while lawfully perfonning the same, at any time within 5 years prior to the effective date of this amendatory Act may file a claim therefor within two years after the effective date of this amendatory Act. (As amended by Act approved July 23, 1951.)”

It is claimant’s position, that the time limitation did not begin to run against him during his imprisonment.

This, however, is not the law, since it is the well established rule followed by this Court that persons incarcerated in a penal institution are not, by mere reason of such incarceration, under disability within the contemplation of the savings clause of Sec. 22. McElyea vs. State, 7 C.C.R. 69; Robertson vs. State, 19 C.C.R. 146; DeVore vs. State, 21 C.C.R. 106; Atkinson vs. State, 21 C.C.R. 429.

Claimant also contends that said statute should not operate as a bar in this instance, due to the fact that claimant, during his imprisonment, was without access to competent legal counsel, and was unlearned in the law with only an eighth grade education; and, further, in September of 1952, filed a claim with the Industrial Commission believing such procedure proper in order to secure redress and compensation for his injury. It is further contended that claimant also requested compensation for such injuries from the warden of the Illinois State Penitentiary at Joliet, but was refused such request. These facts do not have the effect of avoiding the operation of the statute of limitations by the terms of which this Court is governed in its jurisdiction of claims brought before it. The statute clearly requires a claim to be filed with the Clerk of the Court within two years after it first accrues. It appears from the face of the record that this was not done.

Therefore, under the law, the Court is without jurisdiction to hear and determine this claim. The motion of respondent is allowed, and the complaint dismissed.