text:
    (No. 5176
    Harry Dumermuth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 17, 1966.

    McConnell, Kennedy, McConnell and Morris, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

This is an action brought by claimant, Harry Dumermuth, against respondent, State of Illinois, to recover damages for personal injuries, which he sustained on November 8, 1963, when he fell into a concrete drainage culvert or ditch at the Dixon Springs State Park, Pope County, Illinois.

Claimant charges in his complaint filed herein that his fall and resulting injuries were caused by the negligent and careless maintenance of this particular drainage ditch, and contends that respondent was negligent in failing to warn claimant of the existence of the ditch, failing to provide proper and adequate lighting in and around the area where claimant fell, and failing to provide a guard rail or warning sign around the hole or ditch into which claimant fell.

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

On November 8, 1963, claimant went by car to the lodge at the Dixon Springs State Park for the purpose of registering for a deer hunting permit. Claimant arrived at the Park at approximately 5:00 A.M. Because of the number of hunters already there, he had to park his car about one-half mile from the lodge. He walked approximately one-third of a mile down the road toward the lodge, and then entered the Park. He left the road to take his place in a double line of hunters seeking permits. Claimant remained in this line five and one-half hours to register. The area and road in front of the lodge where he registered were crowded with people watching the deer that had been killed being checked in at a check-in point, which was located in front of the steps leading from the lodge to the road.

After registering, claimant decided to return to his motel for lunch. Because of the crowd of hunters surrounding the weighing scale in the road in front of the building, claimant did not try to enter the road at that point, but retraced his route over the Park grounds.

Claimant returned to the Park at approximately 3:00 P.M. The road was completely filled on both sides with parked cars so he parked in approximately the same location as in the morning, and took the same route to the building, not walking up the road, but walking over the grounds in the Park. About 6:00 that evening, there were still seventy or more numbers ahead of his for hunting permits. He decided to go home and return in the morning. By this time it was dark. When claimant left the lodge, he could not go down the front steps to the road, because that area was full of people, so he wedged his way behind the people standing near the railing running along the concrete walk in front of the lodge, and then went down the steps at the end of the walk. He walked about ten feet, turned, stepped into the road at a vacant parking place, and fell into a concrete drainage culvert or ditch about two to two and one-half feet deep and about fourteen inches wide running along the north edge of the road. There were no guard rails or warning signs in this area, and it was not lighted.

Claimant had never been in the Dixon Springs State Park before November 8, 1963, and, prior to this fall, he had not been anywhere near this ditch, because he has always had to park his car some distance from the area, and walk in through the Park. As a result of the accident, claimant sustained a markedly comminuted fracture of the proximal phalanx of the right great toe with a dislocation of the tarsal metatarsal points, dislocation to all of the joints in the foot to some degree, and small fractures involving the proximal end of the first, second and possibly the third metatarsal. Claimant was hospitalized for two days, and a temporary cast was put on his foot. On November 15, 1963, a closed reduction of the fracture was performed under a general anesthetic. This did not hold, and, on November 26, 1963, an open reduction was performed including the use of a Steinman pin to stabilize the dislocation of the first tarsal metatarsal joint. Claimant now has a permanent restriction of motion of the metatarsal-phalangeal joint of the great toe, which interferes with the normal function of the foot.

The question presented in this case is whether the State owed a duty to this claimant, the degree of that duty, whether this duty was breached, whether the claimant was injured as a proximate result of that breach, and, if so, the nature and extent of claimant’s injunes.

Claimant was clearly an invitee, and the State had the duty to exercise ordinary care to protect him from harm. The record discloses that claimant came to the Dixon Springs State Park to register for a deer hunting permit. The State had set up a place for hunters to register in the lodge at that Park, and claimant was injured returning to his car from the lodge where the hunting permits were issued. This Court held in Kamin vs. State of Illinois, 21 C.C.R. 467, that a member of the general public in a State Park is an invitee. In this case, the Court stated at page 472:

“. . . although the State is not an insurer of the safety of those who make use of the park facilities, the State must exercise reasonable care in the maintenance of its parks, and in supervising the use thereof by the public.”

It would appear from the facts in this case that the duty of file State to exercise reasonable care in the. maintenance of its parks has been breached. The Park officials must have known, or should have foreseen, that persons would be walking along the road’s edge and crossing into it at different points in going to and from their cars, yet no guard rails, signs, or lights were put up to warn people of the existence of the ditch. In the case of Brown vs. State of Illinois, 22 C.C.R. 231, the Court held that the State of Illinois was negligent in maintaining drains without covers, which were located in the walking area of a cattle bam, where the drains were littered with straw, and could not be recognized as such.

The case at hand is analogous in that the simple precaution of installing an iron grating across this two and one-half foot deep concrete drainage culvert would have possibly prevented the occurrence, or at least would have reduced the seriousness of the injuries suffered. Since the culvert had been in existence for some time, the argument cannot be made that the State did not have notice of the existence of the ditch running along the side of the road. Furthermore, the State must have realized that such a deep ditch left unmarked, unguarded, and unlighted was a dangerous trap.

There is no evidence in the record to substantiate respondent’s claim that claimant was contributorily negligent. Claimant had never been in the Dixon Springs State Park until the day of the accident, and had no opportunity to learn of the existence of the drainage culvert prior to his falling into it.

The State, knowing people were using the road, parking in the area, and returning to their cars after dark, had the duty to warn the public of the ditch’s existence. This it failed to do, and, as a result, this claimant was permanently injured.

Claimant’s Bill of Particulars indicates that he has expended $1,222.35 for hospital and medical expenses, and has suffered the loss of wages and salary in the sum of $1,870.00.

Direct unrefuted testimony establishes that claimant suffered permanent damage. Dr. Consigny testified that there was definite restriction of motion of the joints about the middle portion of the foot, with marked restriction of motion of the metatarsal-phalangeal joint of the great toe. He stated that these restrictions will interfere with the normal function of the foot, and cause claimant to limp during the latter part of the day.

It is the opinion of this Court that claimant is entitled to an award in the amount of $6,092.35. It is therefore, ordered that claimant’s claim in that amount be allowed.


source: Caselaw Access Project

author: Pezman, J.

license: Public Domain

text:
    (No. 5188
    Black and Company, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 17, 1966.

    Black and Company, Inc., A Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $511.80 for certain items of hardware furnished to various departments of government of the State of Illinois. On May 19, 1965, Mr. L. D. Ryan, a Vice-President of the claimant corporation, testified in behalf of claimant concerning the original invoice tickets bearing signatures of State employees totalling $503.86.

On June 17,1966, a stipulation was entered into by and between claimant and respondent establishing that the invoices were not paid because of the lapse of appropriations. That agreement establishes that the amount the respondent owes to claimant is $503.86.

This Court has routinely held that, where an appropriation for the biennium from which a claim should have been paid had lapsed, it will enter an order for the amount due to claimant.

Claimant is hereby awarded the sum of $503.86.


text:
    (No. 5195
    Columbia Casualty Company, A New York Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 17, 1966.

    Frederick R. Pefferle, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Columbia Casualty Company, a New York Corporation, surety on an indemnity bond for Krueger Construction Company, Inc., seeks to recover from the State of Illinois the sum of $4,358.00 admittedly owed by the State to the Krueger Construction Company for construction work performed pursuant to certain contracts.

A stipulation for judgment was entered into by and between the State of Illinois, as respondent, and the Columbia Casualty Company, a New York Corporation, as claimant, on the 8th day of November, 1965. From this stipulation the undisputed facts of the cause are as follows: Respondent on the 10th day of November, 1959, by the Department of Public Works and Buildings, entered into a written contract with the Kruger Construction Company, Inc., for the resurfacing of the one mile track and construction of a Type “B” electrical conduit at the Illinois State Fairgrounds in Springfield, Illinois, for a total contract consideration of $21,351.04. Subsequently, on the 2nd day of December, 1959, by mutual consent of both respondent and the Krueger Construction Company, the resurfacing of the one-half mile track at the same Illinois State Fairgrounds for the additional consideration of $7,760.00 was added to said written contract, the contract being designated as No. 7166.

Claimant issued its indemnity bond No. SB6B238357 on the 13th day of November, 1959, with the Kruger Construction Company as principal, claimant as surety, and respondent herein as obligee. On that same date the Krueger Construction Company, in connection with its indemnity bond, executed an indemnity agreement in favor of claimant. By virtue of the terms, conditions, and provisions of said indemnity bond, claimant paid out a total of $11,325.18 to various claimants in the nature of subcontractors who furnished and/or rendered labor and/ or material in connection with the subject matter of the written contract, and, obtained Mechanics Lien releases from said lien claimants. By the aforementioned stipulation, respondent admits that, as of the date of the completion of the contract itself, the Krueger Construction Company had a credit of $4,358.00 for work done under the contract, which sum was completely independent of other claims by the Krueger Construction Company for alleged extras performed, and for which recovery is now being sought by said company in another cause before this Court.

The testimony of an officer of the Krueger Construction Company clearly indicates that, by virtue of claimant’s payment of certain lien creditors heretofore mentioned, claimant was justly entitled to the balance of $4,358.00 due from the State of Illinois to the Krueger Construction Company. The stipulated facts also indicate that on the 8th day of September, 1961, written application was made to respondent for payment of the sum of $4,333.00; that such payment was not forthcoming; and, that funds for payment of the total balance due of $4,358.00 lapsed into the General Fund of the State of Illinois.

A joint motion by claimant and respondent for leave to waive briefs was filed on the 9th day of November, 1965, and granted by the Court.

The last paragraph of the stipulation entered into by the parties states as follows:

TT IS, THEREFORE, STIPULATED AND AGREED, by and between the above captioned parties, through their respective attorneys, that the Court, upon presentation of this Stipulation by either party thereto or the attorney for said party without notice to the other of said party or their attorney may enter judgment in favor of Claimant, COLUMBIA CASUALTY COMPANY, a New York Corporation, against Respondent, the STATE OF ILLINOIS, for the sum of FOUR THOUSAND THREE HUNDRED FIFTY-EIGHT and no/100 ($4,358.00) Dollars and costs.” DATED: November 8, 1965.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contracts were entered into, it would enter an award for the amount due. American Oil Company, Inc., A Corporation, vs. State of Illinois, case No. 5109, opinion filed June 26, 1964; The Pittsburg and Midway Coal Mining Company, A Corporation vs. State of Illinois, case No. 5147, opinion filed July 24, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Columbia Casualty Company, is, therefore, awarded the sum of $4,358.00.


text:
    (No. 5295
    Traffic Control Corporation, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 17, 1966.

    Endler, Harris and Butler, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover from respondent the sum oi $32,555.00, which it alleges the Department of Public Works and Buildings, Division of Highways, obligated the State for through the purchase of certain traffic signal parts. The undisputed facts indicate that on November 24, 1964, the Division of Highways, issued its purchase order No. 643458 and requisition No. TS 52-257 for certain specific traffic signal parts. The claim of Traffic Control Corporation, An Illinois Corporation, was filed on March 25, 1966. A Departmental Report of the Division of Highways in relation to this cause was filed on June 6, 1966, and states as follows:

“On November 24, 1964, the State of Illinois, through the Department of Public Works and Buildings, Division of Highways, issued its purchase order No. 643458, requisition No. TS 52-257, to Traffic Control Corporation for traffic signal parts in the amount of $32,555.00, described in the purchase order attached to the claim (complaint) in this Court of Claims case.
“Purchase of this equipment was requested by District 10 of the Division of Highways through the Central Bureau Engineer of Traffic, W. R. Berry, on August 25, 1964.
“The material was received in good condition in four separate deliveries between January 19 and January 26, 1965. The material was installed as part of a Cook County Highway Department Construction Project, which has received final approval by both the Cook County Highway Department and the Division of Highways.
“The charges were reasonable for such material in the community where furnished, and no part of the bill of $32,555.00 has been paid.
"Claimant’s invoice would have been vouchered and paid in the regular course of business if it had been submitted to the proper office at the appropriate time. Appropriations had been made by the State Legislature covering all the items, and as of September 30, 1965 there were unobligated balances of sufficient amounts in the appropriations from which claimant’s invoices could and would have been paid.”

A stipulation of facts by and between respondent and claimant was filed on June 6, 1966, and clearly states, among other tilings, that the material was received in good condition, and that the charges were reasonable for such material in the community where furnished.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contracts were entered into, it would enter an award for the amount due.

Claimant, Traffic Control Corporation, An Illinois Corporation, is hereby awarded the sum of $32,555.00.


text:
    (No. 5300
    Stuart Weiss, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 17, 1966.

    Stuart Weiss, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Stuart Weiss, M.D., presented his statement to the State of Illinois Board of Vocational Education and Rehabilitation for hospital care rendered to one Clarence Littig in April of 1965. The Board of Vocational Education and Rehabilitation had determined that the recipient was eligible to receive assistance. A Departmental Report was filed in this cause indicating that Dr. Stuart Weiss was entitled to the sum of $20.00, and also indicating that the Division of Vocational Rehabilitation of the Board had denied the claim for services rendered on the basis that it was services rendered prior to July 1, 1965, and that the appropriation for that biennium had lapsed. On April 6, 1966, a complaint was filed herein by claimant seeking to recover the sum of $40.00 for services rendered to the said Clarence Littig.

Subsequently, on May 25, 1966, a stipulation was entered into by and between claimant and respondent whereby “neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $20.00.”

Pursuant to such stipulation and the Departmental Report, claimant is hereby awarded the sum of $20.00.


text:
    (No. 5316
    Union Electric Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 17, 1966.

    Union Electric Company, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks payment for electrical service rendered to the State of Illinois, Department of Public Works and Buildings, Division of Highways, at 7th and Bowman Avenue, East St. Louis, Illinois, for a period from October 16, 1962 to November 16, 1962 in the sum of $672.59.

A report of the Division of Highways was filed herein on the 4th day of August, 1966, and states as follows:

“From the period October 16, 1962 to November 16, 1962 claimant, Union Electric Company, furnished electrical service for the pumping station at 7th and Bowman Avenue, East St. Louis. The charges for the electrical service were the usual, reasonable, and customary charges for such service in the community where furnished.
“No part of this bill has been paid by the Division of Highways, Department of Public Works and Buildings, or other State agency, for the reason that the bill was not presented, scheduled, and processed until some time after September 30, 1963, when the 72nd biennium appropriations lapsed.
“The service had been ordered by persons having proper authority, and the charges are true and correct. Claimant’s invoice would have been vouchered and paid in the regular course of business if it had been submitted to the proper office at the appropriate time. Appropriations had been made by the State Legislature covering these charges, and, as of September 30, 1963, there was an unobligated balance in a sufficient amount in the appropriation from which claimant’s invoice could and would have been paid.’’

A written stipulation was entered into between claimant and respondent clearly adopting the facts set forth in the Departmental Report as the sole and only evidence in this cause. From this Report, the Court establishes that the appropriation from which this claim could have been paid had lapsed.

This Court has heretofore previously held on many occasions that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. The Departmental Report establishes all of the qualifications for an award.

Claimant is hereby awarded the sum of $672.59.


text:
    (No. 5318
    Decatur and Macon County Hospital Association, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 17, 1966.

      Le Forgee, Samuels, Miller, Schroeder and Jackson, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Decatur and Macon County Hospital Association, A Corporation, presented its statements to the Department of Public Aid for services, which were rendered to the following individuals on the dates set forth thereafter:

Margaret Taylor, 829 N. Illinois, Decatur, Illinois 5/2/65-6/25/65
Ruby Jane Van Norsdale, 451 Longview, Decatur,
Illinois 4/21/65-5/ 1/65
Margaret T. McDaniel, 854 W. King, Decatur,
Illinois 6/29/65-6/30/65
Fern Gertrude McDaniel, R.R. No. 1, Decatur,
Illinois 6/25/65-6/30/65
Charles Mount, 422 West Eldorado, Decatur, Illinois 4/28/65

The Department of Public Aid had determined that the aforementioned recipients were eligible to receive aid under its program of Assistance to the Medically Indigent Aged, but the Department denied the claims for the services rendered on the basis that the claims were for services rendered prior to July 1, 1965, and that the appropriation for that biennium had lapsed. On June 6, 1966, claimant filed its complaint in the Court of Claims seeking to recover the sum of $2,356.97 for hospital services rendered to the five individual recipients heretofore mentioned.

A Departmental Report was filed in the matter as exhibit “A,” and, pursuant to stipulation, was admitted into evidence. The Departmental Report consists of a letter from Harold O. Swank, Director of the Department of Public Aid, stating in effect that claimant is justly entitled to the amount claimed.

Pursuant to the stipulation entered into on behalf of the Decatur and Macon County Hospital Association, by its attorneys, and the State of Illinois, by the Attorney General, the Departmental Report was admitted into evidence as the sole and only evidence in this cause. From this we find that the reasonable and equitable charges for services rendered by claimant to Margaret Taylor, Ruby Jane Van Norsdale, Margaret T. McDaniel, Fern Gertrude McDaniel, and Charles Mount amounted to $2,356.97. We find that the appropriation for payment of the same had lapsed, and that claimant is justly entitled thereto.

Claimant is hereby awarded the sum of $2,356.97.


text:
    (No. 5321
    St. Anthony Hospital, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 17, 1966.

    St. Anthony Hospital, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, St. Anthony Hospital of Terre Haute, Indiana, presented its statement to the State of Illinois, Department of Children and Family Services, for hospital services rendered to one “Baby Girl Yoder” during the period from February 1, 1965 to February 10, 1965.

The hospital services for “Baby Girl Yoder” were contracted for through the Champaign District Office of the Division of Child Welfare, Department of Children and Family Services. The claim was denied by the Department in April of 1966 on the basis that the claim was for services rendered prior to July 1, 1965, and that the appropriation for that biennium had lapsed. On June 15, 1956, claimant filed its complaint in tire Court of Claims seeking to recover the sum of $90.00 for hospital services furnished to the said “Baby Girl Yoder,” as set forth hereinabove.

A report of the Department of Children and Family Services was filed in the matter as exhibit “A,” and, pursuant to stipulation, was admitted into evidence in its full context. Exhibit “A” states in part as follows: “Our investigation indicates that the charge appearing on the statement is legitimate, and, therefore, we cannot disagree with the claim.”

We find that there were funds available in the appropriation of the Department of Children and Family Services for the purpose of administering the provisions of Sec. 5 of “An Act Creating the Department of Children and Family Services,” and that the lapsed balance in that account was sufficient to cover the charge in question. Pursuant to the stipulation as to evidence, we further find that a contract had been properly entered into, services satisfactorily performed, materials furnished in accordance with such contract, proper charges made therefor, and that adequate funds were available to pay the same. The appropriation for the biennium from which such claim could have been paid had lapsed. We find that all qualifications for an award have been met in the instant case.

Claimant, St. Anthony Hospital, is hereby awarded the sum of $90.00.


text:
    (No. 5333
    Illinois Bell Telephone Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1966.

    James R. Bryant, Jr., Douglas G. Brown and Thomas R. Phillips, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Illinois Bell Telephone Company, filed its claim on August 4, 1966 seeking to recover the sum of $2,066.95, a balance due and owing to claimant for services rendered to the Department of Public Health for the billing period of September 11, 1964 to September 25, 1964.

Claimant alleges that services were actually furnished to respondent pursuant to tariffs, rules, and regulations of the Illinois Commerce Commission, which form a contract between the Telephone Company and its subscribers. Claimant further alleges that the services rendered consisted of a Centrex console equipment installation, fixed equipment rental, and terminals, and other items that are more specifically set forth in a bill of particulars, which was made a part of claimant’s complaint. It is further alleged that the claim was presented to the Director of Public Health early in 1966, and that by reason of lapse of the appropriations for the biennium involved the claim was not paid.

Claimant and respondent, by their respective attorneys, on September 6, 1966, entered into the following stipulation:

“1. That claimant is a Public Utility Corporation, incorporated under Illinois Law, and at the special instance and request had supplied equipment and service at the Public Health Office at 1601 W. Taylor Street, Chicago, Illinois.
“2. That the charge for said installation and service, as provided for in the published tariffs, is as follows:
a. Specific terminals ................... $ 139.51
b. Fixed rentals ...................... 855.07
c. Console charges..................... 147.04
d. Installation charges ................. 925.33
Total....................... $2,066.95
“3. That; as a result of a new program of payment adopted by the Department of Public Health, and the delay in billing by claimant, payment was not made prior to the closing of the biennium appropriation.
“4. That no assignment or transfer of the claim has been made.
“5. That there is rightfully due to claimant the sum of $2,066.95.
“6. That, upon the foregoing agreed case filed therein, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue."

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Illinois Bell Telephone Company, is hereby awarded the sum of $2,066.95.


author: Dove, J.

text:
    (No. 5314
    Virgil McCarty, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 17, 1966.

    Virgil McCarty, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant seeks to recover the sum of $200.00 for services rendered by him to the Department of Public Aid.

A Departmental Report was filed admitting that one Simon Keppel was a recipient of assistance from the Department of Public Aid, and that services were rendered by claimant, Dr. Virgil McCarty, in connection with the amputation of the right leg of the recipient. The Departmental Report further disclosed that the statement for services was not paid on the grounds that funds appropriated for such payments had lapsed, and that there was now due Dr. McCarty the sum of $100.00.

Subsequently a stipulation was entered into by and between claimant and respondent, which stipulation conformed to the findings and recommendations of the Departmental Report.

This Court has held that, when the appropriation for the biennium from which a claim should have been paid has lapsed, it will enter an order for the amount due claimant.

Claimant is hereby awarded the sum of $100.00.


text:
    (No. 5340
    Southwestern Assemblies of God College, Waxahachie, Texas, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 17, 1966.

    Warwick H. Jenkins, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Southwestern Assemblies of God College of Waxahachie, Ellis County, Texas, seeks to recover the sum of $489.00 for tuition, maintenance, books, and supplies furnished to one Donna Marie White for a course of study in claimant’s educational institution for the period from February 1, 1965 to May 24, 1965.

. A Departmental Report of the Division of Vocational Rehabilitation acknowledges the facts as alleged by claimant, and states clearly; “Claimant is entitled to the amount of the invoice voucher, and it was suggested by this office that they file for the claim through the Court of Claims.” Claimant’s billing was denied by the Department when presented, on the basis that the claim was for services completed prior to June 30, 1965, and that the appropriation for that period had lapsed.

On September 22, 1966, a written stipulation was entered into between claimant and respondent, by their respective attorneys, which supports the position of claimant in this matter.

This Court has heretofore held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the case at hand.

Claimant, Southwestern Assemblies of God College, Waxahachie, Texas, is hereby awarded the sum of $489.00.


text:
    (No. 5342
    Campus Book Store, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 17, 1966.

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

Claimant seeks to recover the sum of $142.42 for certain books furnished by claimant to the Division of Vocational Rehabilitation. Subsequently a stipulation was entered into by and between claimant and respondent establishing that the invoices were not paid on the grounds that the funds appropriated for such payments had lapsed. The stipulation further provides that the amount of $142.42 is owed by respondent to claimant.

This Court has held that, when the appropriation for the biennium from which a claim should have been paid has lapsed, it will enter an order for the amount due claimant.

Claimant is hereby awarded the sum of $142.42.


text:
    (No. 5024
    States Improvement Company, Inc., an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Rothschild, Hart, Stevens and Barry, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Pezman, J.

This action arises out of a contract entered into between claimant, States Improvement Company, Inc., an Illinois Corporation, and respondent, the State of Illinois, wherein claimant agreed to erect a certain steel I-beam bridge and approaches at a point approximately one quarter of a mile from the City of Decatur, County of Macon, State of Illinois.

Claimant contends that, due to the manner specified in said contract for the installation of piles, and the soil conditions existing at the time the contract was entered into, it was impossible to perform the contract, and that the State of Illinois wrongfully defaulted claimant to the damage of the sum of $320,810.59. Respondent did not file, an answer to the complaint, so a general denial of the facts, as set forth in the complaint, prevailed.

The contract, which is the subject matter of this suit, sets forth specifications to be employed for the construction of concrete piles. Piles, which were manufactured by Raymond International, Inc., met the specifications, and were the piles used. The evidence shows that these were pre-stressed concrete piles. The contract further provided for the method of installation, which method was stated to be as follows:

“(d) Installation.
The piles shall be installed in accordance with one or more of the following procedures.
“ (1.) Driving — The piles shall be driven with a steam hammer, which shall develop not less than forty thousand (40,000) foot-pounds of energy per blow at full stroke. A solid hardwood cushion block at least six (6) inches thick shall be used in the base of the hammer to cushion the blow of the hammer ram on the follower. A laminated ring-shaped cushion block, at least six (6) inches thick, made of one (1) inch hardwood boards and cut to fit the head of the pile shall be used between the follower and the top of the pile. Both cushion blocks shall be inspected periodically during driving, and no driving shall be done with blocks that have been unduly worn and compacted with use. When the point of the pile is passing through soft soil, and there is little or no resistance to penetration, the stroke of the hammer shall be reduced to approximately twenty-four (24) inches. When the point of the pile is being driven in firm ground, the full length of the stroke of the hammer shall be used to develop final resistance, but in no case shall the strokes exceed forty-two (42) inches. Piles shall be driven to the resistance determined by the Engineer.
“(e) Jetting and Driving.
In granular soils, jetting will be permitted in conjunction with driving, except that final penetration shall be attained without the use of jets. After jetting is stopped, the pile shall be driven to the elevation designated by the Engineer. Care shall be exercised during jetting that no internal hydrostatic pressure greater than twenty (20) psi does not build up within the pile. Internal jetting will not be permitted unless specifically authorized in writing by the Engineer.”

On or about April 5,1959, claimant commenced work on this project. In the month of August, 1960, claimant was ready to commence the installation of the concrete piles. From August 1 to August 15 of that year attempts were made to drive the piles to the proper elevation, but claimant was unable to do so, even though attempts were made to overdrive the piles. The contract provided that the Resident Engineer would have sole authority to determine the maximum number of hammer strokes per inch, which could be utilized in driving the piles. Despite the prior order of the Resident Engineer that driving should not proceed beyond ten blows per inch, the Resident Engineer directed that the first pile be overdriven. After the use of twenty-eight blows per inch, only one additional inch of penetration was achieved. Claimant then requested permission to use air jets in an effort to assist the driving of the piles to a lower elevation, and such jets were put into operation. With the use of the jets there was still no noticeable improvement in the driving of the piles. Work was finally halted on this project on August 19, 1960.

Subsequent to this work stoppage, claimant requested permission to excavate within the pile, and further stated that, if the new method was more expensive, he would expect additional pay. However, the request was turned down, and finally, on September 20, 1960, the Director of Public Works and Buildings of the State of Illinois sent claimant a ten day notice to comply or a default would be taken. Claimant obtained an injunction from the Circuit Court of Cook County against the Director restraining him from defaulting the contract. This injunction remained in effect until February 27, 1961, when the injunction was dissolved. The State of Illinois then readvertised the contract, and it was relet to the C. E. Burg-ett Construction Company.

The new contractor retained the services of Raymond International, Inc., as a sub-contractor to install the piles. Raymond International, Inc., then proceeded to install the piles through the use of an airlift device, which is described by claimant as a method of internal excavation, and described by respondent as a method of internal jetting.

Claimant contends that it could not deviate from the contract’s specifications without authority from the State, and that, because of the particular soil conditions encountered in driving the piles, the piles could not be installed in accordance with the specifications of the contract. Claimant further contends that respondent, the State of Illinois, subsequently allowed Raymond International, Inc., to use a form of internal excavation in installing the concrete piles. Claimant further contends that, since the State had prepared the specifications for the installation of the piles, it had a duty, when it became apparent that the contract could not be performed in accordance with such specifications, to allow claimant to use other methods of installing the piles. In addition, claimant argues that, when the State refused to change the specifications, it was excused from further performance on the grounds of impossibility.

The pertinent questions in this case are:

1. Did the State have the legal right to terminate claimant’s contract?

2. If it did not, what damages, if any, are recoverable by claimant?

The contract in this case set forth the type of piles to be installed, and further provided for the method of installation. The State of Illinois prepared the specifications, and it is clear that claimant was required to install the piles in the manner expressly set forth in the contract. This contract is known in the Industry as the “specified manner and method” contract, rather than as an “end result” contract. From the testimony in this case, it appears that this was an unusual agreement, but nevertheless it existed in this instance.

Mr. Alexander Riff was called as a witness by respondent. Mr. Riff testified that he was an employee of Raymond International, Inc., and was well acquainted with the piles to be installed, inasmuch as his company manufactured this concrete pile. Mr. Riff testified that, in his opinion, there was a possibility of installing the piles by a method of hammering and jetting as specified in the contract, but, while possible and feasible, such a method was not practical. Mr. Riff went on to testify that, after the contract was relet, Raymond Intenational, Inc., used a combination of hammering and air-lift to drive the piles. Mr. Riff testified that from an engineering standpoint the method used by Raymond International, Inc., to install the piles was a form of excavation.

Mr. Carter Jenkins of Springfield, Illinois, was called as a witness by claimant. He testified as to his background, and qualified as an expert witness. Mr. Jenkins stated that the Director of the Department of Public Works and Buildings of the State of Illinois, W. J. Payes, had on or about June 14, 1961, requested him to make a survey of this project, and make a report of his findings. Mr. Jenkins testified that, in his opinion, the piles could not have been installed, placed or driven by using the methods outlined in the specifications of the contract regarding that particular type of work.

Director W. J. Payes testified in behalf of claimant. His testimony, in substance, was that claimant was not permitted to install the piles by internal excavation, but that, after the contract with claimant was terminated, and another one obtained, the new contractor was permitted to install the piles by internal excavation.

From the testimony in this case, it appears to the Court that the methods set forth in the contract for the installation of these piles could not have been followed, and that by and under the terms of the contract claimant was limited to the methods specified therein, and could not deviate from the provisions thereof without the permission of respondent, the State of Illinois.

The law on the subject of impossibility and the effect of impossibility to perform a contract, as agreed, appears to be clear. Corbin on Contracts, Vol. 6, Sec. 1332, states as follows:

“A distinction has been drawn between........the personal inability of a promisor to do what he promised and the objective impossibility that the promised performance can be rendered by anyone. The two terms call attention to a distinction between two kinds of facts that are very different in their legal operation.
“Objective Impossibility........may discharge a contractor from his duty......The duty of a promisor is never discharged, however, by the mere fact that supervening events deprive him of the ability to perform, if they are not such as to deprive other persons, likewise, of the ability to render such performance.”
Chap. 14, Sec. 454, of Restatement of Contracts, states:
“Impossibility means not strict impossibility but impracticable because of extreme and unreasonable difficulty, expense, injury or loss involved.”
See. 456 of Restatement of Contracts states that:
“......a promise imposes no duty, if performance of the promise is impossible because of facts existing when the promise is made of which the promisor neither knows nor has reason to know.”

The definition of impossible, as set forth in the Restatement of Contracts, has been upheld by the Illinois courts in Fisher vs. United States Fidelity and Guaranty Company, 313 Ill. App. 66, 39 N.E. 2d 67 (1942).

Thus, it appears that under the laws of the State of Illinois the method required by the contract for the installation of the piles in the instant case was legally impossible of performance, and that claimant was thereby excused from its performance thereunder. It, therefore, necessarily follows that the State of Illinois improperly defaulted claimant.

We now turn our attention to the question of damages, if any, recoverable by claimant. The Bill of Particulars pertaining to damages, which was filed in this suit, shows that claimant received cash in the sum of $192,134.25. There was no dispute as to the amount received.

Claimant, in its Bill of Particulars, sets forth certain items chargeable to this project, the time various items were on the job, the monthly rate, loss of profit, and the total loss of $320,810.59 after allowing credit for the $192,134.25 received. Of the items listed in the Bill of Particulars, one is for an office trailer, which allegedly was on the job twenty months, and charged at the rate of $100.00 per month. The evidence does not sustain the burden of proof to show that this was for the benefit of the State, and therefore, this item of $2,000.00 is disallowed.

Certain other heavy equipment is allegedly on the project for twenty months. However, a portion of that time was for the period during which the injunction obtained by claimant was in effect. In the judgment of this Court, claimant should not benefit for this period of time, and, therefore, the Court reduces those items listed in the Bill of Particulars as having been on the project for twenty months to seventeen months. It is the opinion of this Court that claimant should not benefit for said time period when, through its own action, it prohibited work on the project. This Court, therefore, arrives at the total figures as follows:

Item Quantity Time Rate Amount

Lima 802 Diesel 1 17 Months 4,354.00 74,018.00

HD 21 Dozer 1 17 Months 3,778.00 64,226.00

D-6 Dozer 1 17 Months 1,268.00 21,556.00

977 Loader 1 17 Months 1,743.00 29,631.00

600 CFM Compressors 2 8 Months 897.00 14,352.00

Pump, High Pressure 1 8 Months 360.00 2,880.00

Pump, 8" Centrifical 1 8 Months 328.00 2,624.00

D-7 Dozer 1 17 Months 1,737.00 29,529.00

$238,816.00

50% of AED Rates $119,408.00

White 10 Cy 6 Wheel Trucks 8 11,666 Hours 4.63 .54,013.58

Material and labor 207,148.56

Percentage of payroll to cover union dues, insurance and other expenses 20,898.41

TOTAL $401,468.55

Prior payment on contract — Less 192,134.25

Balance $209,334.30

It is the opinion of this Court that the impossibility of performance of this contract, due to the fact that claimant was required to use only those methods specified in the contract for driving piles, discharges claimant from its duty, and, in turn, frees the State from further duty under the contract. It is the further opinion of this Court that in such a situation the law seeks to place the people in the same condition as they were prior to entering into the agreement.

Sec. 468 (d) of Restatement of the Law of Contracts, American Law Institute, states as follows:

“Since there is no fault on either side, the loss due to impossibility or frustration must lie where it falls. Neither party can be compelled to pay for the other’s disappointed expectations, but, on the other hand, neither can be allowed to profit from the situation. He must pay for what he has received. The amount he must pay in gauged by the extent that what he has received forwards the object of the contract. If the contract was an unwise one from the standpoint of the one who has received performance, this does not limit his duty to pay. If, on the other hand, the contract was a disadvantageous one from the standpoint of the one rendering the performance, he cannot recover for what he has done on a more profitable basis than the contract affords.”

Thus, claimant is not entitled to any profit from this project, and, therefore, this Court has disallowed claimant’s alleged profit of $44,101.59, and also the sum of $31,072.28 representing 15% of the charges for material and labor, which claimant also alleges as part of the profit due on this job.

Claimant is hereby granted an award in the amount of $209,334.30.


text:
    (No. 5118
    Charles Estel Burke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

      R. W. Deffenbaugh, Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel and Lee D. Martin, Assistant Attorneys General, for Respondent.
   Dove, J.

Claimant, Charles Estel Burke, on March 3, 1961 and prior thereto, was employed as a Prison Agricultural Foreman IV at Pontiac State Prison, Pontiac, Illinois, as a Civil Service employee under the rules of the Department of Personnel. There is no disagreement as to the fact that he was wrongfully discharged from said position on March 3, 1961, and was reinstated following a decision of the Appellate Court of Illinois on June 4, 1963. (Burke vs. Civil Service Commission, 190 N. E. 2d 841.)

At the time of his discharge, claimant’s monthly salary amounted to a gross sum of $560.00 a month, and under the pay scale in effect this would have increased to $600.00 per month on July 1, 1961, and to $615.00 per month on January 1, 1963.

Following the ruling of the Appellate Court above cited, claimant received from the Department of Public Safety the sum of $14,490.00, representing salary from July 1, 1961 to June 30, 1963. No payment was made to claimant for salary loss covering the period from March 4, 1961 to June 30, 1961 for the reason that the appropriation for the biennium had lapsed.

During the period of his employment, claimant was furnished the use of a house, which was owned by the State of Illinois. It was located on the prison grounds, but was outside the wall. The uncontradicted testimony shows that the rental value of the house was $85.00 per month, and that the water and electricity furnished in said house was of the value of $4.00 and $10.00 per month, respectively. The heating of the house was also furnished by the State at a value of $140.00 per year. Claimant was also allowed to purchase items at wholesale prices in the general store of the prison up to a limit of $35.00 per month.

Claimant now seeks to recover for the loss of his salary for the period of March 4, 1961 to June 30, 1961 in the amount of $2,185.81, and for the reasonable value of the rent-free house, water, electricity and heat in the sum of $4,072.00, which would have been furnished him from March 4, 1961 to June 30, 1963, had he not been wrongfully discharged. He further claims reimbursement of the amount of $235.17, representing various filing fees, abstract expenses, etc., which were incurred by him in his successful attempts to reverse the order of the Civil Service Commission discharging him.

Since the decision of the Supreme Court of Illinois in Kelly vs. Chicago Park District, 409 Ill. 91, it has been the rule of the courts of Illinois that one who is wrongfully discharged is entitled to collect his full salary covering the period of wrongful discharge with the exception that any amounts earned by the individual from other employment during the period of discharge are to be used as a set-off. Claimant urges that this rule has been changed by an amendment to Sec. 63B-111 of Chap. 127, Ill. Rev. Stats. The amendment was added a few months after the decision was announced in the Kelly case, and the statute now provides that an officer or employee shall receive “full compensation” for any period during which he was suspended pending the investigation by the Civil Service Commission of charges against him. It is claimant’s contention that the words “full compensation” evinces legislative intent to abrogate the rule concerning set-off.

Since the decision in the Kelly case, the courts of Illinois have had occasion to reexamine the rule of set-off in cases involving Civil Service employees who were wrongfully discharged. The following cases all reaffirm the rule set forth in the Kelly case:

Murray vs. City of Chicago, 171 N.E. 2d 492, 28 Ill. App. 395;
People ex rel. Krich vs. Hurley, 169 N.E. 2d 107, 19 Ill. 2d 548;
People ex rel. Borne vs. Johnson, 48 Ill. App. 2d 307, 199 N.E. 2d 68.

The Court of Claims has consistently followed the rule decided in the Kelly case, and it appears conclusive that any award to claimant for salary loss between March 3, 1961 and June 30, 1961 must be offset by any earnings he received from other employment during that period.

Testimony was introduced with regard to claimant’s contention that he should be compensated for the loss of use of the State furnished home, water, heat and electricity, since these were “benefits”, which attached to the position he held. Claimant stated that he had no choice about where to live during his employment as farm manager for the prison. It seems a reasonable inference that he was required, by virtue of his duties as farm manager, to live on the prison grounds, and it would further appear that this requirement was imposed for the benefit of the Department of Public Safety in the administration of the prison program. Any “benefits”, which would be derived by claimant’s use of the rent-free house, inured to the Department of Public Safety, and not to claimant. It would seem obvious that it would be advantageous to the Department to have claimant close at hand and readily available. Since he was required to live in the house as a condition of his employment, it would not seem that his use of the house could be considered as income to him, although he undoubtedly did derive some pecuniary advantage from the arrangement. An award to claimant for the loss of these “benefits” will, therefore, have to be denied.

In regard to the right of claimant to purchase items up to $35.00 each month at the wholesale prices charged by the prison store, we believe that this would he analgous to the right of a member of the Armed Services to use the Post&Exchange where items can be purchased at a substantially lower cost than elsewhere. The only loss to claimant caused by his inability to avail himself of this right of purchase would he the difference between the retail and wholesale value of the items, which he would purchase. There is no way to determine what items claimant might have purchased each month, nor any evidence concerning the wholesale and retail value of such items. This portion of the claim, too, must, therefore, be denied.

There is no authority in the Court of Claims Act for the payment of monies expended by a claimant in another court. This part of the claim is likewise denied.

Claimant testified that the salary he would have received had his employment at the prison continued was $2,185.81. His earnings, however, during the period of March 3, 1961 to June 30, 1961 from outside employment amounted to $1,293.75, which must be considered as a set-off by this Court in arriving at an award.

Ah award is, therefore, hereby made to claimant, Charles Estel Burke, in the sum of $892.06.


author: Perlin, C.J.

text:
    (No. 5151
    Jimmie G. Fuller, Claimant vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    R. Corydon Finch, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, Jimmie G. Fuller, seeks recovery of $618.95 for damages incurred when an escaped ward of the Illinois Youth Commission stole and damaged claimant’s automobile and personal property, which was stored in the vehicle.

The statute, which was in effect on October 27, 1963 when the incident occurred, provides as follows:

“Whenever a claim is filed with the Department of Public Welfare, or the Department of Public Safety, or the Youth Commission for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable, penal, reformatory or other institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Public Welfare, or the Department of Public Safety, or the Youth Commission, as the case may be, shall conduct an investigation to determine the cause, nature and extent of the damages inflicted, and, if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said Department or Commission may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have the power to hear and determine such claims.” (Emphasis supplied.) (Chap. 23, Sec. 4041, Ill. Rev. Stats.)

Therefore, the elements, which must be ascertained before a recovery is awarded to claimant, are: (1) that an inmate escaped from an institution over which the State had control; (2) that the inmate caused the damage claimed while he was at liberty after his escape; (3) that the proper State authority establishes upon investigation that the damages were caused by the escapee; and, (4) a determination of the nature and extent of the damages.

Claimant Fuller testified that he worked at the Kimmel Auto Supply Store in Anna, Illinois, which was located at 200 North Main Street. On October 27, 1963 at 8:00 A. M., he parked his 1956 Pontiac in the parking lot, which was owned by the store. The parking area was located in front of the store. He left the keys in the car, and did not lock it. At 11:00 A. M. he discovered that the. car was gone, and notified police. The next he heard concerning the car was when the police called him from Chicago saying they had recovered it. Claimant then went to Chicago to retrieve the automobile. The car was damaged, and a transistor radio and several tools were missing.

The Departmental Report of the Illinois Youth Commission, by John A. Troike, Chairman, states: “An investigation of the facts indicates that it is reasonable to believe that a ward of the Illinois Youth Commission may have caused damages to Mr. Fuller’s property; .. .”

In support of this conclusion the following evidence was submitted:

(1) A report of Donald L. Harper, Camp Director, Union Forest State Boys’ Camp, Jonesboro, Illinois, which contained the following information: On October 25, 1963 at approximately 8:40 P. M., Thomas Bagnall and John Turner ran away from Union Forest State Boys’ Camp. John Turner was working in the laundry room, an honor job. Thomas Bagnall asked for permission to go to the washroom, which was granted. When Thomas Bagnall arrived at the washroom, the two boys bolted through the barracks, and left through the door. They were missed in four or five minutes when Bagnall did not report back from the washroom. A search was immediately organized, but there was no word of the boys.

A car was stolen in Anna at approximately 4:00 A. M. on October 26th. A boy answering the description of Thomas Bagnall was picked up by a man and his wife south of Anna, Illinois just prior to daylight on the 26th. The boy had run out of gas, and was taken to a gas station where he had very little money, and could only purchase a gallon or so of gas. The man took the boy back to the automobile. This car was later found abandoned just east of Anna.

On the morning of the 26th, a boy answering the description of Thomas Bagnall was seen walking up and down the block on North Main Street in Anna. The boy was dressed in blue jeans torn down the left leg. He was observed walking by the 1956 Pontiac, which was owned by Jimmie Fuller, and parked in front of the Kimmel Auto Supply Store on North Main at about 10:00 A. M.

On October 27th a call was received from the Sheriff of Union County stating that Mr. Fuller’s car had been found abandoned in Chicago. Extensive damage had been done to the car, and tools had been taken from the trunk of the automobile. Fuller went to Chicago to claim his car, and returned with a pair of pants, which had been left in the automobile. The pants were very dirty, and torn down the left leg. The pants and belt were of the prison-type used at the camp.

Thomas Bagnall was picked up in Forest Park near Chicago, and returned to the Reception and Diagnostic Center in Joliet.

The report states: “It is our feeling that Thomas Bagnall stole this automobile, and, since the automobile was low on gas, he either sold the tools to purchase gas, or traded them for gas and possibly some clean clothing. During Thomas’ and John’s stay in camp, they repeatedly planned to run away, and talked about it many times. We feel that both of these boys would not hesitate to run away again, if they were in the same type setting.”

(2) A report of the Department of Police, Village of Forest Park, Illinois, included the following* information: On October 27, 1963, a radio message was received from the State Police that Thomas Bagnall had escaped from the Jonesboro Youth Camp. Thomas had been reported seen in the area on several occasions, and, on November 2, 1963, was apprehended with three other youths. The other youths gave the information that Thomas had been arrested in a stolen auto in the past week, had gone to Boys Court under the name of James Oberg, and was placed on one year supervision. A fingerprint check showed that Oberg and Bagnall were the same person.

(3) A report of Arthur B. Wright, Superintendent of the Illinois Industrial School for Boys, Sheridan, Illinois, stated that Thomas Bagnall denied being involved in the auto theft, and gave the story that a truck driver picked him up, and drove him to Chicago. However, it was the opinion of those present at the interview that Thomas was lying, and that the route, which he described, would not come within 100 miles of where he claimed to have been picked up.

It is the opinion of this Court that the investigation and report of the Youth Commission establish that Thomas Bagnall escaped from the Union Forest State Boys’ Camp, and, while on escape, stole the automobile belonging to Jimmie G. Fuller.

Respondent contends, however, that claimant violated Sec. 189 of the Uniform Act Regulating Traffic on Highways, Chap. 95%, 1963 Ill. Rev. Stats., which provides: “No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key....Respondent further alleges that claimant’s violation of this statute amounted to negligence, and was the proximate cause of his loss. We do not accept the pertinency of such an argument in the light of the specific recovery right bestowed by the statute (Chap. 23, Sec. 4041, 1963 Ill. Rev. Stats.). But, it is noteworthy that, even if the argument could well lie, respondent could not prevail.

In the case of Childers vs. Franklin, 46 Ill. App. 2d 344, 197 N. E. 2d 148 (1964), the Court held that Sec. 189 was not applicable where the defendant left his automobile with keys in a school parking lot. It stated that the statute refers only to the operation of vehicles on public highways, and does not apply to automobiles parked on a private lot. The same holding was reached in the cases of U. S. Fidelity Guaranty Co. vs. State of Illinois, 23 C.C.R. 188 (1960), where the stolen car was in claimant’s driveway, and Stanko vs. Zilien, 33 Ill. App. 2d 364, 179 N. E. 2d 437 (1961), where the stolen vehicle was taken from a used car lot. In the instant case, the automobile was not on a public highway, but was parked in a private parking area, which was owned by the store in which claimant worked, thus removing it from the application of Sec. 189.

The expenses, which were allegedly sustained by claimant as a direct result of Bagnail’s escape, are as follows: Call to Chicago to check on the car, $2.00; gasoline, $30.89; meals and room, $18.00; storage charges on car in Chicago, $12.00; wages lost while retrieving car, $16.80; one transistor radio, $18.00; tools, $175.00; and, repairs to car, $200.00.

This Court has long followed the principle of ‘ ‘ avoidable consequences ”, which holds that a claimant must use such means as are reasonable under the circumstances to avoid, mitigate, reduce or minimize the damages, which he has incurred as a result of a wrongful act. Schneider vs. State of Illinois, 22 C.C.R. 453; Otto vs. State of Illinois, 24 C.C.R. 72; Stephanites vs. State of Illinois, 24 C.C.R. 340; Cordes vs. State of Illinois, 24 C.C.R. 491; Kelly vs. Chicago Park District, 409 Ill. 91, 98 N. E. 2d 738. Claimant has net proved that expenditures for wages lost, meals and lodging were necessary or proper. He did not show that it was necessary for him to retrieve his car on a working day, nor did he prove that it was necessary to spend the night in Chicago. Therefore, these items will be disallowed.

Accordingly, claimant is hereby awarded the sum of $553.26.


text:
    (No. 5154
    Wilson Jamison, for the use of Country Mutual Insurance Company, A Corporation, and Wilson Jamison, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Massey, Anderson and Gibson, Attorneys for Claimants.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

This claim arises from an accident, which occurred approximately two miles south of Paris, Edgar County, Illinois, at 2:00 P.M. on March 26,1962. Claimant, Wilson Jamison, was traveling south on Route No. 1 in a 1958 Dodge, which he had previously bought as a used truck, with a load of feed. When about twenty feet from a depression on the west half of Route No. 1 the pavement suddenly collapsed leaving an eight by ten foot hole, which varied in depth from four to seven feet. Claimant was unable to to avoid the cavity. The left side of the truck dropped into, and then bounced out of the hole. The resulting damages amounted to $825.56, which claimant now seeks to recover in this action.

Illinois Route No. 1 in Edgar County was constructed about 1920 by the State of Illinois, and has been maintained by the State since that time. The evidence discloses that the roadway at the point of the collapse was of concrete, and was covered with blacktop. There were earthen shoulders on each side, and under the roadway at a point about three to six feet south of the collapsed area there was a concrete box culvert, which was utilized to carry water from the west to the east under the roadway. The evidence further shows that there had been a rough spot at the point of the collapse for about two years previously, which would frequently sink down, and then would be built up again by the State.

George Bales, then a maintenance section man for the Highway Department, testified that he had repaired this particular portion of the highway twice in the month prior to the accident. A blacktop fill of about one inch in thickness had been spread over the depressed area a month before the accident, and, on March 22,1962, four days before the accident, because of the increased sinking of the pavement, a new application of blacktop premix was added to the surface of the highway.

On the date in question, one of the State employees involved in the refill passed over this particular area, and noticed that the place felt like it was sinking. At noon he called his superior, George Bales, and together they again inspected the site of the depression. They were unable to determine the cause of the sinking, and, after reporting the difficulty to the Highway Maintenance Department, both left the area to go to other sites. No repairs were made, nor were signs or barricades erected to warn the traveling public of the dangerous condition of the pavement in this particular area.

The evidence discloses that following the accident a State crew was called to the scene, and found that the west half of the pavement at this point was completely undermined. After the concrete was removed, the cavity was found to be up to seven or eight feet in depth at various points. • Near the bottom was a broken drain tile, which crossed the roadway from west to east. The existence of this tile did not appear on the Highway Department’s plat, and apparently antedated the original pavement. Its outlet was located in a ditch or stream down the slope from the highway, and about a hundred feet from the undermined aréa.

To recover in cases of this kind, it is a prerequisite that claimant prove: (1) freedom from contributory negligence; (2) negligence of respondent, which was the proximate cause of the accident; and, (3) injuries or damages as the result thereof.

Wilson Jamison, claimant, testified that he knew of the bump in the highway, and that, because of this knowledge, he had decided to “take it easy” when he approached the site of the accident, so as not iio jar his truck too much. No warning signs or barricades were in evidence, so that claimant was unaware of the further deterioration of the pavement. Claimant stated that he was traveling around thirty-five miles per hour at the time, and that, when he was about twenty feet from the area, the pavement collapsed. He was unable to stop, and the truck dropped into the hole.

In the case of Jack M. Visco, Et Al, vs. State of Illinois, 21 C.C.R 480, the Court held:

“There cannot be any hard or fast rule in determining when it can be said that the State had ‘constructive notice’ of a dangerous condition, and each case must be decided on its own particular facts. In the instant case, the enormous size of the hole, and the fact that it had existed for at least a week, leads us to the conclusion that the State had constructive knowledge of the dangerous condition, and failed to either repair, or erect warning signs.”

In arriving at an award for injuries sustained in an accident where the Highway Department had removed a portion of the pavement in the case of Grover G. Henderson vs. State of Illinois, 24 C.C.R 35, the Court stated:

“We are familiar with the fact that the State of Illinois is not an insurer of all persons who travel upon its highways. However, the State is bound to maintain its highways in such a condition that the public can travel upon them with a degree of safety. Respondent is required to protect and warn the traveling public when any major improvements are being made, such as removing portions of the surface of highways, and should erect warning signs, flares, and use any and all devices to warn the traveling public of the repair work going on, or provide a detour, which would be safe for the public to drive on.”

In the instant case, this Court is of the opinion that, since the State was aware of the problem in maintaining this particular portion of the highway for a period of at least two years prior to this accident, had repaired the road twice in the month prior to the date in question, this was sufficient notice. We are further of the opinion that a reasonable person, under the circumstances, would have concluded that this was not a normal defect in the roadway, and would have taken the necessary steps to determine its cause.

It is further the opinion of this Court that respondent was negligent in its actions on the day in question. As previously pointed out, only two hours before this occurrence, two employees of the Highway Department visited the site, and were fully aware that the pavement was sinking at that time. Barricades or other warning devices should have been installed by them to warn approaching drivers of the dangerous condition of the pavement. This they failed to do.

It is, therefore, the opinion of this Court that respondent was negligent in its maintenance of this portion of Route No. 1, that claimant was free from contributory negligence, and is entitled to an award.

In arriving at an award, it is to be noted that the Country Mutual Insurance Company was included as a claimant in this action because of its interest by way of subrogation in a portion of the damages to the truck. Claimant’s exhibit No. 1 was introduced in evidence. It reflects a total charge of $794.89 for repairs to the truck, and, in addition, a charge of $51.12 for replacement of a tire. It was stipulated by the parties, however, that the correct amount for the latter item should be $30.67.

Claimants are, therefore, hereby awarded the total sum of $825.56 to be paid as follows:

Wilson Jamison..........................$100.00
Country Mutual Insurance Company, A Corporation, as subrogee ............... 725.56


text:
    (No. 5163
    Clifford Elmore, Claimant, vs. Teachers College Board, Respondent.

      Opinion filed January 10, 1967.

      Costigan and Wollrab, Attorneys for Claimant.
    Dunn, Dunn, Brady, Goebel, Ulbrich and Hayes, Attorneys for Respondent.
   Pezman, J.

This is an action brought by claimant, Clifford Elmore, against respondent, Teachers College Board, to recover damages for personal injuries, which he sustained on June 24, 1963, when the end of a packing crate struck him in the legs, as he was lifting open a garage door.

The facts concerning the happening of the accident, as shown by the evidence, are as follows: Claimant, a fifty-seven year old ceramic tile and marble contractor, had a subcontract to tile two swimming pools on the campus of Illinois State University, Normal, Illinois.

Respondent, through its agents and employees, gave claimant permission to store his tile in one stall of a four stall garage building, which was owned by the University, and located on its property approximately one block from one of the jobs. Each stall of this garage opened onto a street by means of its own individual door, a one piece, solid wooden door without glass. It was of the type, which did not bend or roll, but rather pulled out and up from the bottom. When raised, it was stored overhead. The stalls, each ten feet wide and approximately fifteen to sixteen feet deep, were not partitioned. The building on the inside was open from one end to the other. The University assigned claimant the second stall from the south end of the building. In the southernmost stall was a large crate, approximately six feet high, five or six feet wide, and ten feet deep. It was pushed into the stall just far enough to clear the door by about three feet. The crate was made from rough framing lumber, two by fours framed, and other siding material, which was one inch heavy crating lumber, and was skidded on six by sixes.

There were interior locking devices for the four garage doors, which consisted of horizontal rods placed towards the bottom of each door, and fitted into catches in the door frames. The only exterior locking device was a clasp for a padlock on the outside of the door of the southernmost stall. After claimant unloaded his truckload of tile in the garage he locked the three north doors, which included his own, from the inside, and put a padlock on the clasp on the southernmost door. The padlock had two keys. He gave one to Robert Dietsch, Superintendent of Grounds at the University, and retained the second key.

When claimant or his employees withdrew tiles from their assigned stall for use in the pool construction, their practice was to unlock the padlock on the south door, enter the garage through the south door, wálk past the crate to the second stall, open the second stall door from the inside, back their truck up to the door and load up the material they wanted. When the loading was completed, they would close the second stall door, fasten it from the inside, leave the building by the southernmost stall, and close and padlock the southernmost stall door from the outside.. This they did once or twice a week.

The crate in the southernmost stall contained an ozalid machine. Several days before the accident Dr. Charles Porter, Chairman of the Department of Industrial Education at Illinois State University, instructed an employee of the University to pry open the front or west end of the crate, so that the machine’s dimensions could be determined. After the crate was opened, Dr. Porter, together with Dr. Talkington and another person, went to the garage and measured the machine.

The record shows that the inside fastening devices used by claimant to lock the three northerly stall doors from the inside were actually ineffective, and had been so for some time. The record further shows that claimant was unaware of this situation. Even when fastened on the inside, the door to claimant’s stall could be opened from the outside by giving it a strong jerk. On the occasion when Dr. Porter and Dr. Talkington wanted access to the south stall to examine the crate, they merely jerked open the door of claimant’s stall, and entered the garage through claimant’s stall. Claimant testified that he was last in the garage prior to the incident in litigation on June 20 or 21, 1963, and that at that time the crate was intact. Dr. Porter testified that he and his men did not nail the crate back together again, and that, when they left, the crate was anywhere from one to two feet from the door.

On Monday, June 24, 1963, at approximately 3:00 P.M., claimant went to the garage to get some materials. Claimant testified that, as he opened the southernmost door of the garage, as he had done on numerous occasions before, the end of the crate fell against him injuring his legs and feet. As a result of his injuries, claimant had out of pocket medical expenses of $80.80, and he was forced to hire a foreman for five weeks at a cost of $160.00 per week. The only permanent injury sustained by claimant is a numbness and swelling of the left leg when he has been working all day. As a result of the accident, he wears a shoe one size larger on his left foot.

The first question to be decided is the legal status of claimant at the time and place of the accident. If claimant was a licensee and not an invitee, the rule is well settled that respondent owed him no duty except not to wantonly or wilfully injure him. However, if under the facts claimant was an invitee, then respondent owed him the duty to exercise reasonable care and caution in keeping the garage area reasonably safe for use by claimant. The test as to when one is an invitee or licensee is whether one comes by the owner’s invitation to transact business in which the parties are mutually interested. Ellguth vs. Blackstone Hotel, Inc., 340 Ill. App. 587; 92 N.E. 2d 502 (1950); Milauskis vs. The Terminal Railroad Association of St. Louis, 286 Ill. 547; 122 N.E. 78 (1919); Pauckner vs. Wakem, et al, 231 Ill. 276; 83 N.E. 202 (1907).

If a person is upon the premises of the owner by invitation, express or implied, and not by mere permission, then such persop is an invitee, and the owner owes him the duty to exercise ordinary care to keep the premises in a reasonably safe condition. Ellguth vs. Blackstone Hotel, Inc., 340 Ill. App. 587; 92 N.E. 2d 502 (1950); Jones vs. 20 North Wacker Drive Bldg. Corp., et al, 332 Ill. App. 382; 75 N.E. 2d 400 (1947).

A licensee is one who enters upon the premises of another by permission for his own purposes. Kapka vs. Urbaszewski, 47 Ill. App. 2d 321; 198 N.E. 2d 569 (1964).

When respondent contracted with claimant to tile the two swimming pools, respondent not only invited but contracted for the presence of claimant. The facts in this case clearly support, the contention of claimant that he had the status of an invitee at the time and place of the accident. Respondent’s contention that claimant had exceeded the bounds of his invitation when he used the southern door of the garage as an entrance way to the area, which he used for storing tile, is rejected by the Court. Whether the invitation can be held to extend to the place where the injury actually occurred depends upon the circumstances in each particular case. Ellguth vs. Blackstone Hotel, Inc., 340 Ill. App. 587; 92 N.E. 2d 502 (1950); Jones vs. 20 North Wacker Drive Bldg. Corp., et al, 332 Ill. App. 382; 75 N.E. 2d 400 (1947).

An invitation extends to any portion of the premises, which the owner may reasonably anticipate the invitee to use in connection with the conduct of the business on the premises. The case of Pauckner vs. Wakem, Et Al, 231 Ill. 276; 83 N.E. 202 (1907), held that the invitation of a warehouseman to enter the warehouse to remove goods is broad enough to include all the space occupied by the goods, together with the necessary passways in and out of the warehouse, and covers a passway in front of an unguarded elevator shaft near the goods, even though a person familiar with the premises might get to the goods through another passway, and thereby avoid passing the elevator shaft.

In the instant case, the record indicates that one of respondent’s agents instructed claimant to store his materials in the garage. Therefore, claimant had the right to store his materials in this garage area in the assigned space, and quite naturally had the right to have access to said materials. It is the opinion of this Court that claimant did not exceed the bounds of respondent’s invitation to him when he elected to enter the garage through the dqor adjacent to the stall, which was assigned to him, instead of using the door opening directly into his stall. Testimony divulges that claimant chose to use this particular door as an entrance and exit because there were no exterior locking devices on any other door.

The final question to be decided concerns the negligence of respondent and the freedom from contributory negligence on the part of claimant. With respect to the negligence of respondent, it appears from the record that the crate in question was owned by respondent. The evidence further establishes that certain representatives of respondent entered the garage in question, and pried the crate open so that they could observe the machine inside. The evidence indicates that after respondent’s employees looked at the machinery, they did not renail or secure the west end of the crate. When claimant opened the garage door he was injured when the west end of the crate fell against his legs. From the facts, as presented, we presume that the west end of the crate had been leaning against the garage door, and fell on claimant when the door was opened.

It appears from the record that respondent’s agents were responsible for the creation of the dangerous condition, which caused the injury. Evidence indicates that this particular crate was in place and properly secured four days before the accident. Some time between June 20, 1963, and June 24, 1963, the date of the accident, respondent’s agents opened the crate, including the west end of the crate, and failed to renail or secure the crate before leaving the garage. To allow the crate to remain in an unsecured condition, knowing that other persons would or could use the garage building, constitutes negligence.

Respondent, under the theory of respondeat superior, is charged with the knowledge of, and the acts of its employees, acting within the scope of their employment. Clearly, respondent’s agents were acting within the scope of their employment when they opened the crate. Accordingly, their failure to secure the crate end after the inspection, and allowing it to be in a precarious or dangerous condition immediately prior to the occurrence, was negligence chargeable to respondent. It is equally clear that claimant did nothing that in any way proximately contributed to or caused his injury and damage. The accident occurred when claimant raised the garage door, and the crate end fell out of the door striking him on the legs and feet. Testimony of claimant established the weight of the falling crate at approximately 300 to 400 lbs. Claimant had raised the door in this particular fashion, and walked by the crate housing the printing machine on numerous occasions, and on each occasion the crate was in a solid and substantial state. Claimant had no notice, or knowledge that a dangerous condition existed on the other side of the garage door when he opened it. He did only what he had done on previous occasions, and only what might have been expected of a reasonably careful and prudent man.

Claimant is hereby awarded the sum of $2,410.80.


text:
    (No. 5238
    Mary Spear, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Dunn and Hayes, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grosman, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $325.50 for the loss of her 1959 Studebaker automobile, which was damaged beyond repair on June 2, 1965, while being driven by one Charles Brooks, a ward of the Illinois Youth Commission, who with one Paul Morris, likewise a ward of the Illinois Youth Commission, stole the automobile while it was parked on the grounds of the Morris Country Club, at Morris, Illinois. Claimant seeks the sum of $290.00 for the automobile; $7.50 for a pair of men’s rubber overshoes, which was present in the car at the time of the accident; and, the sum of $15.00 for towing charges to remove the automobile from the scene of the accident. Claimant further alleges that said automobile was equipped shortly before with snow tires of a value of $48.00, and that she received the sum of $35.00 as salvage for said automobile.

The facts appear to be undisputed. Claimant, on the morning of June 2, 1965, drove her 1959 Studebaker to an implement shed, which was located on the grounds of the Morris Country Club. She and her husband, William Spear, operated the Pro Shop at the Morris Country Club. The automobile was left near the implement shed for the use of the said husband and the greens keeper in moving golf carts, which were used on the golf course, • from the implement shed to the Pro Shop, which was located about one-half mile from the implement shed. Claimant stated that keys were left in the car so that the grounds keeper could move the car, if it became necessary to move other equipment out of the shed in the maintenance of the golf course. From the record it appears that the Morris Country Club is a corporation organized under the laws of the State of Illinois, and, as such, is the legal owner, and holds title to the real estate upon which the golf course and implement shed were located.

On June 2, 1965, Charles Brooks and Paul Morris were wards in the custody of the Illinois Youth Commission in its camp at Channahon, Illinois, and were part of the work detail from the Boys ’ Camp in Gebhard Woods State Park, near Morris, Illinois. The Departmental Report made by the Camp Director to the Superintendent of Forestry Camps of the Illinois Youth Commission comprises one of the most important elements of evidence in this case, and is, therefore, set forth in detail as follows:

“The above three youths ran from the Gebhard Woods State Park work detail at approximately 10:25 A.M., June 2, 1965. The detail was being supervised by Mr. Arthur Ryder, who noticed the boys’ runaway immediately. Mr. Ryder went to a neighbor’s house near the park and called me, and I notified the sheriff’s office and the State police.
“Ronald Williams, age 16, was apprehended at 10:45 A.M. when two deputies from the sheriff’s office happened to be cruising in the area and noticed the three boys together. They apprehended Ronald Williams at this time, but the other two boys were able to elude them across a field and in some heavy underbrush and woods. When the boys departed from the detail, each had a hand sickle in his possession. The three boys were part of an eight boy work detail that started working at 8:00 A.M.
“Paul Morris and Charles Brooks made their way to the Morris Country Club located on Route No. 6 west of Morris, Illinois, and stole a 1959 Studebaker Lark automobile that had the keys in the ignition. The automobile belonged to Mrs. Leslie Spears. The boys took the automobile, and went to Route No. 80 near the City of Minooka, Illinois, with Charles Brooks driving. The boy lost control of the vehicle, and the car left the right hand side of the road, turned over three times, and was completely destroyed. At this point the Illinois State Police apprehended these boys, but at the time of the wreck they were not being pursued. The driver just lost control.
“Paul Morris suffered a cut arm and some bruises on his body, and Charles Brooks complained of a sore back, but apparently none of these injuries were of a serious nature. The sheriff’s office still has Paul Morris and Charles Brooks in custody, and any medical attention that might be needed is being taken care of there.
“Ronald Williams was returned to the Reception Center on June 2. He had not been a special disciplinary problem while at camp. He had wanted to be transferred to Kankakee Camp where he had been previously, but neither you nor I could see any special reason for this being done.
“Charles Brooks and Paul Morris are both 17 years of age. The State’s Attorney is filing an information petition against them for auto theft, and they are to have a court hearing on Friday, June 4, 1965, at the Grundy County Court House at Morris. Charles Brooks had been in camp just about a month, since May 13, 1965, and his only problems were continuous smoking, and not wanting to work on detail. Charles had spoken of running away on several occasions. Paul Morris had been in camp for three months, and, except for two occasions when he was very defiant to the staff, he had not been in any other difficulty.”

This claim is predicated upon Chap. 23, Sec. 4041, Ill. Rev. Stats., which is as follows:

“Section 1. Whenever a claim is filed with the Department of Mental Health, or the Department of Children and Family Services, or the Department of Public Safety, or the Youth Commission for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable, penal, reformatory or other institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Mental Health, or the Department of Children and Family Services, or the Department of Public Safety, or the Youth Commission, as the case may be, shall conduct an investigation to determine the cause, nature and extent of the damages inflicted, and, if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said Department or Commission may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have the power to hear and determine such claims.”

This Court in Dixon Fruit Company, a Corporation, et al., vs. State of Illinois, 22 C.C.R. 271, held that a favorable recommendation by the department or commission concerned is not a condition precedent to recovery under the statute. In the cause at hand no recommendation was made by the Illinois Youth Commission. Claimant alleges that respondent failed to maintain proper surveillance and supervision over its wards, Charles Brooks and Paul Morris, and more particularly over Charles Brooks, who was the driver of the stolen automobile, and who is mentioned in the Departmental Report as having spoken of running away on several occasions. Respondent contends that claimant must prove by a preponderance of the evidence that the State was negligent in allowing the inmates to escape, and further urges that claimant was guilty of contributory negligence in leaving the keys in the ignition of her automobile when she parked it on the property of the Morris Country Club.

These matters have been passed upon by the Court of Claims in previous decisions, and it is the acknowledged position of this Court that every escape case involving the State of Illinois, which results in damage or injury to a third party, must rest upon its own peculiar set of facts and circumstances. We hasten, to affirm the position of the Court as set forth in American States Insurance Company and Union Indemnity Association vs. State of Illinois, 23 C.C.R. 47. In that case the Court stated on page 55:

“It goes without saying that rehabilitation is the fundamental aim of the Youth Commission program. Decisions as to the placement and progress of these youths must be made by utilizing the best judgment of professional persons trained in administering this program. It is not an exact science, and cannot be administered by a slide rule. It is certain that instances will occur wherein the results of attempted rehabilitation are disappointing. Such instances by no means indicate faulty administration of the program. The duty of the State personnel in exercising the discretion required is not that of an insurer that each boy assigned to the encampment will perform satisfactorily, any more than that the Parole Board should be held to guarantee that a parolee will commit no further crimes. The only duty, which is required, is one of reasonable exercise of discretion.”

In the American States Insurance Company case this Court found no negligence on the part of respondent. The finding was based upon evidence and testimony produced on the part of respondent. In the cause at hand, respondent filed a Departmental Report, but called no witnesses. Other than the facts set forth in the Departmental Report, the evidence in this case consists of claimant’s exhibits, her testimony by deposition, and the deposition of her witness with regard to the matter of damages to the automobile. While reaffirming the position of this Court as taken in the Ameridan States Insurance Company case, we find in the case at hand that respondent had advanced warning that its ward, Charles Brooks, might run away, and could have, therefore, anticipated his subsequent action on June 2, 1965, when he escaped from the work detail of the Youth Commission, and stole the automobile of claimant. This warning can be found in the Departmental Report where it states: “Charles had spoken of running away on several occasions.” Without any other evidence to consider on the part of respondent, and having to rely upon respondent’s Departmental Report, we distinguish the two cases on the basis of fact, and find negligence on the part of respondent.

We must now consider whether claimant was guilty of contributory negligence in leaving her car at the implement shed on. the Morris Country Club grounds with the keys in the ignition. It seems reasonable that an automobile owner would anticipate the danger involved in taking such action, and it is common knowledge that an unattended, unlocked car with the keys in the ignition is not safe. This question has been considered by the Court of Claims and Illinois Courts of Review on several occasions. United States Fidelity and Guaranty Company, A Corporation, vs. State of Illinois, 23 C.C.R. 188; Stanko vs. Zlien, 33 Ill. App. 2d 364; and Childers vs. Franklin, 46 Ill. App. 2d 344. In the United States Fidelity and Guaranty Company case, respondent relied upon Sec. 189 of Chap. 951/2, Ill. Rev. Stats.:

“No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key.”

In that case the automobile of claimant, John Kavanaugh, was parked on private property in the driveway of the Kavanaugh home with the keys lying on the seat at the time the automobile was stolen. On page 195 of 23 C.C.R. the Court held as follows:

“We conclude that the action of the inmate in entering the automobile in the night time, finding the ignition locked, finding the keys on the seat, stealing the car from the front of the residence, and driving it into a post in another part of town, was not reasonably to be foreseen by John Kavanaugh in the exercise of ordinary care for the protection of his property, and constituted the proximate cause of the damage to the Kavanaugh automobile. Consequently, even assuming a violation of the statute, we do not believe that it constitutes contributory negligence, which proximately contributed to the damage in question, so as to bar recovery by this claimant.
“We believe from the evidence in this case that claimant’s insured, John Kavanaugh, was in the exercise of ordinary care for the safety of his automobile, that respondent was negligent in exercising custody over the escaped inmate, and, as a proximate result thereof, the vehicle was stolen and damaged.”

In the case of Childers vs. Franklin cited above, statutory prohibition against motor vehicles standing unattended with the keys in the ignition lock was not applicable to a situation in which the owner left his automobile on a school parking lot unlocked and with the keys in the ignition.

This Court finds the claimant to be free of contributory negligence, and grants to her an award of $325.50.


author: Perlin, C. J.

text:
    (No. 5285
    A. S. Moe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

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

Claimant seeks to recover payment from respondent based on a Physician’s Statement of Services Rendered on behalf of one Cora Ann Bruyn. Claimant alleges that he has made demand for such payment, but was refused on the grounds that the funds appropriated for the Illinois Department of Public Aid had lapsed.

A Departmental Report submitted to the Attorney General states that “Claimant is justly entitled to the payment of $25.00.” A stipulation filed herein states that “Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $25.00.”

It appears that the sole reason for nonpayment of the statement rendered was the lapse of the appropriation.

Claimant, A. S. Moe, is, therefore, hereby awarded the sum of $25.00.