text:
    (No. 4684
    Fern L. Huff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1956.

      Petition of claimant for rehearing denied June 22, 1956.

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

Claimant has brought this action under the provisions of Par. 372a, Chap. 23, Ill. Rev. Stats., (State Bar Association Edition), to recover damages caused by Curtis Carter, an inmate of the Lincoln State School in the City of Lincoln, Illinois.

At the hearing had before the Commissioner on November 7, 1955, it was stipulated between the parties, through their respective counsel, as follows:

“It is stipulated and agreed by and between claimant and respondent, by their respective attorneys, that the Report of the Department of Public Welfare of the State of Illinois, filed in this case under Rule 16, dated September 2, 1955, including the attached letter of August 27, 1955, signed by William M. Fox, M.D., Superintendent of the Lincoln State School, .may be received in evidence as part of the record in this case.”

No answer was filed by respondent, so a general traverse or denial of the allegations is considered filed under Rule 11 of this Court.

The letter referred to, dated August 27, 1955, addressed to Otto L. Bettag, and signed by William M. Fox, M.D., Superintendent of the Lincoln State School, admitted:

1. That the facts contained in paragraph 1 of the complaint as to the time and place of the accident are correct;
2. That claimant was an employee of respondent, as alleged in paragraph 2;
3. That claimant was in the exercise of due care and caution for the safety of her property;
4. That at the time and place alleged Curtis Carter was an inmate of the Lincoln State School, and, as such, under the care, custody, control and supervision of said school;
5. That claimant proceeded to work on the morning in question, and parked her automobile on the premises of respondent in an area provided therefor;
6. That Curtis Carter unlawfully, and without authority, entered an automobile owned by Francis Lee Fink, an employee of respondent, which was parked in the same area; and, that Francis Lee Fink at no time consented to the Carter boy driving or operating said automobile; that the writer did not have any knowledge as to the ownership of the Fink automobile;
7. That without authority or consent of Francis Lee Fink, Curtis Carter, in attempting to leave the grounds of the Lincoln State School in the Fink automobile, carelessly and negligently struck and side-swiped the parked automobile of claimant, causing claimant’s automobile to be thrown against another automobile parked in said area;
8. That the automobile of claimant was damaged as the proximate cause of the negligent acts of Curtis Carter, but stated that he had no knowledge as to whether or not the repairs had been made as stated;
9. That the writer had no knowledge as to the allegations made in paragraph 9, i.e., that claimant had requested payment of damages from the owner of the Fink automobile, but that payment had been refused on the ground that Curtis Carter was not a permissive driver of the Fink automobile, but was, in fact, driving a stolen vehicle in an attempt to leave the Lincoln State School Grounds;
10. That the writer had not seen claimant’s exhibit A, a repair bill in the amount of $189.09.

This was all that was presented by way of a Departmental Eeport.

An order was entered on the motion of claimant and respondent to waive the filing of briefs and arguments, and this cause was submitted entirely on the record. The only testimony offered was that of claimant, who testified that, on April 25, 1955, she was employed at the Lincoln State School and Colony, and had been so employed for 28 years. She was an interior decorator at the School, which is located in the City of Lincoln, Illinois. On the morning in question, she drove her 1951 Chevrolet deluxe sedan to work, and left it in a parking area, known as No. 1, which was reserved for‘employees. About 11:00 A.M., the day guard came to her department, and asked her to come out with him, as something had happened to her car. When she saw her automobile, the top and the whole left side of the automobile were damaged, and the door on the driver’s side could not be opened. After the accident she had the car repaired at the Row Motor Company on Pulaski Street in the City of Lincoln, Illinois, and the damages amounted to $189.09. The repair bill was paid, and she is the sole owner of the claim in question.

The respondent did not offer any testimony.

Claimant does not allege in her complaint, nor has she attempted to prove the type of patient or inmate that Curtis Carter was on the date of the accident, nor does this information appear in the Departmental Report. There is nothing in the record to apprise the Court as to whether or not respondent and its agents were negligent in not keeping Curtis Carter confined to the buildings at Lincoln State School, and whether or not they were negligent in allowing him to escape and go into the parking area where employees kept their automobiles during working hours. All of this would be material and necessary in order for claimant to prove that respondent and its agents were negligent in permitting Curtis Carter to escape from the buildings and gain access to the automobile, which damaged claimant’s vehicle.

We make this statement in view of a case this Court recently decided, Dixon Fruit Company vs. State of Illinois, No. 4662, opinion filed on March 16, 1956, in which the Court held, among other things, that the Legislature enacted the 1953 amendment to the statute in light of the present law governing the Court of Claims, and the decisions under that Act, and intended that the Court of Claims apply much the same test in determining* claims under this statute as it would apply to a case before it for damages caused by an escaped inmate to the person or property of another. The statute does not set out the test to be applied, but it is significant to note that nowhere in the statute is there any wording, which specifically directs the Court of Claims to apply the test of absolute liability. Hence, we will not allow claims under the statute unless we find the state to have been at fault.

The case of Malloy vs. State of Illinois, 18 C.C.R 137, arose in this Court subsequent to the 1945 amendment, wherein the doctrine of governmental immunity was no longer applicable to claims against the state. Claimant predicated her ease upon negligence, contending that the state negligently permitted the inmate to escape. The claim was allowed. In the event the Court had failed to find negligence, there would have been no recovery, since the state is not an insurer.

In the present case, there are no allegations of negligence, nor is there any proof offered as to the negligence of respondent’s agents in permitting* Curtis Carter to escape and enter the parking* area where employees ’ cars were parked. In the absence of this testimony, we are unable to decide whether or not respondent should have exercised more restrictive control over the movements of this particular patient.

We are, therefore, unable to find by a preponderance of the evidence that respondent was negligent in failing to take proper measures' in controlling the activities of Curtis Carter, and will, therefore, have to deny recovery.

It is also the finding of this Court that the following-statute is not one of absolute liability:

Chap. 23, 372a. “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. As amended by an Act approved June 30, 1953.”

On the date of the accident, there was a statute in effect in the State of Illinois, which reads as follows:

Chap. 951A, 189. “(a) 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, or when standing upon any perceptible grade without effectively setting the brake thereon, and turning the front wheels to the curb or side of the highway, (b) No person shall operate or drive a motor vehicle, who is under fifteen years of age.”

Our reason for pointing out this statute is that claimant alleged that she made claim against the owner of the Fink automobile, a co-employee, and that payment of damages was denied on the grounds that Curtis Carter was not a permissive driver of the Fink automobile, as he was, in fact, driving a stolen vehicle in an attempt to leave the Lincoln State School grounds. We cite this statute, because we believe that Francis Lee Fink violated the statute in question, and, had claimant elected to proceed against him, she would be entitled to recover. We make this statement after having carefully considered the case of Ney vs. Yellow Cab Company, 2 Ill. (2d) 74, wherein this statute was properly discussed. In the opinion, the Court stated: “That the motivation of such legislation is not the state’s desire to punish, but rather its interest in public welfare, and for the protection of life, limb and property by prevention of recognized hazards. Further, the violation of the statute is prima facie evidence of negligence under the prevailing rule of this state. (Johnson vs. Pendergast, 308 Ill. 255; Stewart vs. U.S., 186 Fed. (2d) 627.) ”

The record in this case is silent as to whether or not the ignition key was left in the Fink automobile, the reason for which we assume was because neither side recognized, or had gone into this legislation. We would have to assume that the key was left in the Fink automobile, because it appeared that all Curtis Carter had to do was to enter the car, and start the motor, which, in effect, caused the damages to claimant’s automobile. This appears to be a violation of the statute, and consequently was an act of negligence, which was one of the proximate and contributing causes of the damage to claimant’s automobile.

We believe that Mr. Fink, being an employee of respondent in a school of this type, should have realized that there was a possibility of some of the inmates walking out of the buildings, and, maybe, in fact, some of them were permitted to wander throughout the grounds, which would be a part of the area where the automobiles would be parked, and that automobiles with keys in the switches might be an attraction for said children. Their curiosity, might prompt them to turn the switch, which in some vehicles permits the motor to start, and, if left in gear, would cause the motor vehicle, not being properly controlled, to run into and damage other property in the particular area. Certainly all employees working in this institution, or anyone visiting an institution, in parking their automobiles on the grounds provided for by respondent, should do everything they can to protect their property, as well as the property of others, by adhering to this statute. We also recognize the fact that claimant could have proceeded against either party, but elected to proceed and bring her claim against the State of Illinois.

We have decided this case' on the principles, which were adopted in the Dixon Fruit Company case.

For the reasons above stated, an award to claimant, Fern L. Huff, is hereby denied.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4712
    Samuel J. Whitaker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 22, 1956.

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

On February 14, 1956, a complaint was filed in this Court on behalf of claimant, Samuel J. Whitaker, wherein it is alleged that he had a claim, which should have been compensable by the Service Recognition Board of the State of Illinois, and should have been paid by such

Service Recognition Board, but that his claim had been denied.

It is alleged that, between June 30, 1937 and February 6, 1946, claimant was a resident of the State of Illinois. In said complaint there are set forth the places and dates of employment in accordance with the records of the United States Department of Health, Education and Welfare, Social Security Administration.

It is further alleged that claimant served in the United States Army from the 27th day of June, 1942, until and including the 6th day of February, 1946, at which time he was honorably discharged therefrom, and, at the time of his discharge, he was a resident of the State of Illinois. It is contended that claimant is entitled to receive compensation in the amount of $500.00, with interest, from respondent, pursuant to “An Act terminating the Service Recognition Board”.

Attached to the complaint is an affidavit of claimant, which reads as follows:

“1. That on the 27th day of June, 1942, he was a resident of the State of Illinois, County of Cook, and' that he did on that day enter the active military service of the United States Army.
2. That at the time when deponent was inducted into the Army of the United States, he was requested to furnish the Army Post Office with a mailing address, and that having been separated from his wife, Helen Whitaker, at that time, he requested that mail be forwarded to his mother, who was at that time a resident of Henderson, Kentucky.
3. That for that reason the United States Aitmy listed his residence at the time of his entry into the United States Army as Rt. 2, Henderson, Kentucky, but that your deponent was at that time a bonafide resident of the State of Illinois, County of Cook, and was then and there employed by James Lunch Room, Chicago, Illinois, but that he did not* have at that time any person in the State of Illinois to receive such mail.”

On May 1, 1956, respondent filed its motion to strike and dismiss on the grounds that the complaint was substantially insufficient in law to state a cause of action in the following particulars:

“The claim alleged is for compensation as a veteran of World War II pursuant to the provisions of Ill. Rev. Stats., 1955, Chap. 126½, Par. 65, and claimant alleges that he served in the United States Army, and was honorably discharged therefrom, and further, it is not alleged that an amended or supplemental claim was pending before the Service Recognition Board on May 20, 1953, as required by the aforesaid statutory provision, and it appears in fact from exhibit A, attached hereto, that the Board of Review of the Service Recognition Board made final disposition of this claim on July 31, 1951.”

An affidavit of Mr. C. Arthur Nebel, Assistant Attorney General of the State of Illinois, is attached to the motion, as is respondent’s exhibit A, a letter written by the Chairman of the Board of Review, dated July 31, 1951, advising claimant that his claim "had been denied.

Inasmuch as the Service Recognition Board disposed of this claim on the ground that claimant was not a resident of the State of Illinois at the time he entered the service, the motion of respondent to strike and dismiss claimant’s complaint is hereby allowed, and the case accordingly dismissed.


text:
    (No. 4677
    Rose Marie Smith and Mildred Hall, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1955.

      Supplemental Order filed July 27, 1956.

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

Rose Marie Smith and Mildred Hall filed a joint complaint in this Court on May 12,1955, alleging that on July 7, 1954 the State of Illinois maintained, controlled and owned, through its agents and servants, a certain public highway known as Roosevelt Road, at or about 20 feet west of Des Plaines, in Forest Park, Illinois.

They alleged that a certain manhole and manhole cover were located in the said road, which it was the duty of respondent to maintain, that the manhole cover had been removed, and that there were no barricades, lights or other warning devices to indicate its removal, which constituted a hazard to vehicular traffic.

Rose Marie Smith owned, and was operating a certain automobile in a westerly direction at the time and place of the accident, and Mildred Hall was a guest passenger in said automobile. At the time of the alleged accident both were in the exercise of ordinary care for the safety of their respective persons and property.

In paragraph 4 of the complaint, it is alleged that respondent had knowledge of the heavy vehicular travel on said highway; that said open manhole was a danger and a hazard to motorists in the absence of due warning, barricades or lights; and, that respondent committed one or more of the following wrongful acts:

(a) Negligently maintained and controlled said highway.
(h) Negligently failed to furnish lights, warnings, or barricades to apprise motorists of a dangerous and hazardous condition.

As a direct result of said negligence, claimants’ automobile struck said open manhole, and each claimant was directly injured thereby. Both parties sustained personal injuries, external and internal, and damage to property. Claimant, Rose Marie Smith, is suing for $500.00, including both personal injuries and property damage; and, claimant, Mildred Hall, is suing for the sum of $1,500.00.

On July 20,1955, a motion was filed by respondent to strike and dismiss claimants’ complaint. Attached thereto was a report of Mr. Earl McK. Guy, Engineer of Claims of the State of Illinois, wherein it is set forth that the highway in question was a part of the system of state highways, and that the construction, reconstruction, operation and maintenance of the street or highway surface has been under the jurisdiction of the Department of Public Works and Buildings for more than the immediate past ten years. Construction, reconstruction, operation and maintenance applies only to the concrete or wearing* surface, and does not include the erection, fitting, adjustment or replacement of sewer, water, gas or electric utility manholes, covers, plates and caps. The manhole and cover located in Roosevelt Road are owned by the City of Forest Park, and are subject to reconstruction, operation and maintenance solely by the City of Forest Park.

Respondent’s motion was predicated upon the fact that the manhole cover did not come under the jurisdiction of, and was not subject to reconstruction, operation or maintenance by the Division of Highways.

On July 28, 1955, objections to respondent’s motion to dismiss, and suggestions in support thereof, were filed in this Court setting forth two statutes involving-maintenance and control of State Aid Roads, namely, Chap. 121, Secs. 37 and 277, Ill. Rev. Stats., 1953.

We are of the opinion that the motion filed by respondent to strike should be sustained for the reason that the manholes and covers thereon are constructed for the convenience of municipalities in the operation and control of public utilities in a city or village, and may be removed by employees of a municipality; and, therefore, come solely within the jurisdiction of a municipality. The responsibility and obligation to maintain, control, and protect the traveling public would be the sole duty and obligation of employees and agents of the municipality, and not the State of Illinois.

The employees, agents and servants of the municipality have the right to remove said manhole covers for the purpose of maintaining service of utilities for residents of the municipality, and, therefore, have the sole obligation of protecting the traveling public by placing barricades, lights or other devices of warning to people traveling upon said street or highway.

The complaint does not set forth any specific acts of negligence on the part of the agents or servants of respondent with reference to barricades, work in progress on the surface of said highway, or permitting large holes to remain in said paved highway without warning the traveling public. The agents or servants of respondent were not engaged in any work on said highway, which would have caused the hazardous condition, nor did any agent or servant of respondent remove the manhole cover creating the condition, which claimants contend caused their injuries and damage.

Respondent’s sole duty and obligation under the statutes cited would be to construct, repair and maintain the surface of said highway; to erect warning signs during repair or construction; and, it would only be liable for its failure to repair a hole in said highway upon either actual or constructive notice that such a hazardous condition exists.

The motion of respondent to strike and dismiss is, therefore, sustained, and the case accordingly dismissed.


text:
    (No. 4692
    Delmar R. Durant and Iowa National Mutual Insurance Company, Subrogee, Claimants, vs. State of Illinois, Respondent.

      Opinion filed July 27, 1956.

    McLaughlin and Patton, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant filed this claim for property damage to his 1950 Chevrolet sedan as the outgrowth of an accident, which occurred on July 24, 1955 at approximately 11:25 P.M. on Illinois Route No. 78, about eight miles north of Morrison, Whiteside County, Illinois.

Claimant makes certain charges of negligence against respondent, whose Chevrolet pick-up truck was being driven by its agent, Gerald Wells.

No answer having been filed by respondent, a general traverse or denial of the facts set forth shall be considered as filed under Rule 11 of this Court.

At the hearing before the Commissioner it was stipulated and agreed between the parties, by and through their respective attorneys, that of the damages claimed to claimant’s automobile, being in the amount of $180.65, the amount of $130.65 was subrogated to the Iowa National Mutual Insurance Company. However, said Insurance Company, or subrogee, was not made a party claimant. Only two witnesses testified at the trial, namely, claimant and respondent’s agent. There was, however, introduced in evidence the Departmental Report of the Division of Hig’hways sigmed by Earl McK. Guy, Engineer of Claims.

The Departmental. Report sets forth that Gerald Wells was an employee of respondent, being employed by the Day Labor Organization, a part of the Bureau of Maintenance, Division of Highways. Each unit had an established personnel, and was assigned a complement of cars, trucks and other equipment to conduct its work.

It was the policy of the state to permit employees in this group to visit their homes on weekends. Mr. Wells had permission from his superior to drive the Chevrolet pick-up truck from Mt. Carroll, Illinois, where he was stationed at the time, to his home at White- Hall, Illinois, on Friday, July 22, and was to return to Mt. Carroll on Sunday, July 24, 1955, the date of the alleged accident.

The Report of the Division of Highways by Earl McK. Guy was filed under Rule 16 of this Court, and was received in evidence without objection.

It appears from the testimony of claimant that he was traveling in a southerly direction in the southbound traffic lane on the westerly side of the road. This was a two lane highway, which was approximately 18 feet wide. He and his wife and son were driving from Galena, Illinois to Galva, Illinois, and the accident took place on a long radius curve. He testified that just prior to the impact he was traveling' sixty miles an hour, and he noticed respondent’s truck, being driven by Mr. Wells, crowding the center line. He pulled his automobile to the right, and was struck by respondent’s truck while it was over the dividing line for northbound and southbound traffic. The respondent’s truck struck the southbound car on the left front, damaging the left front portion and center of said car. The point of impact on respondent’s truck was on the left front, and the collision caused claimant’s automobile to run off of the road on the right hand side.

Herald Wells testified that he was traveling north, that it was dark, that both cars had headlights on, that he was blinded by lights, and did not know whether or not he was completely on his side of the road.

Claimant testified that he was driving with his lights on low beam, and there were two cars preceding him, which had just passed his automobile a short distance before the accident, and he had dimmed his lights in following the other two automobiles. Mr. Wells further testified that, as claimant’s car approached him, claimant was traveling on his own side of the road.

The violations of the statute set forth in the complaint were that respondent’s agent negligently and carelessly failed to drive upon the right half of the roadway, contrary to Section 54 of the Uniform Act Regulating Traffic Upon Highways; failed to pass a vehicle proceeding in the opposite direction, contrary to Section 55 of the Uniform Act Regulating Traffic Upon Highways ; and, further failed to grant the claimant one half of the highway.

From the testimony of claimant and respondent’s agent and the Departmental Report filed in this case, it is the opinion of the Court that claimant was free from contributory negligence, and that the proximate cause of the damage to his automobile was the violation of the statute, in that respondent’s agent failed to drive his automobile in the northbound traffic lane, and failed to yield one half of the highway to claimant, who was proceeding in the opposite direction.

A “paid” repair bill was admitted in evidence, indicating the damages done to claimant’s automobile to be in the amount of $180.65.

It is, therefore, the finding of this Court that an award be made in accordance with the stipulation entered into at the outset of the trial, and that $130.65 be awarded to the Iowa National Mutual Insurance Company, and $50.00 be awarded to claimant, Delmar R. Durant.

It is further the Order of this Court that the complaint be amended on its face making as a party claimant the Iowa National Mutual Insurance Company, as subrogee, along with Delmar R. Durant, and that the award entered by this Court be paid accordingly.


text:
    (No. 4605
    Charles Finch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 28, 1956.

    Curren, Dressendorfer, Friedman and Coleman, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant brings this action under the provisions of Chap. 23, Par. 372a, Ill. Rev. Stats., (1953 State Bar Association Edition), to recover damages to his 1951 International % ton pick-up truck caused by Cecil Swizart, an inmate of the Jacksonville State Hospital, Jacksonville, Illinois, a charitable institution under the direction and control of respondent. Swizart escaped from said institution, and while at liberty stole said motor vehicle belonging to claimant.

It appears from the record, claimant’s exhibit No. 1, and testimony offered by claimant that the Union Automobile Indemnity Association of Bloomington, Illinois, is subrogated to the rights of claimant in any recovery for the damages to his truck, the damages claimed being in the sum of $758.12. In this regard the Union Automobile Indemnity Association should have been made a party claimant, attaching to the claim filed herein its subrogation agreement showing its rights to the full amount of any recovery in the event of an award.

Copies of four letters were offered in evidence pertaining to the claim in question. A letter, under date of February 18, 1954, is directed to Dr. Otto L. Bettag, Director of the Department of Public Welfare, Springfield, Illinois. This letter was written by Louis Belinson, Superintendent of the Jacksonville State Hospital, wherein the allegations of the complaint are answered. We quote from paragraph 5:

“Cecil Swigart, an inmate of this hospital, escaped from a work detail on the institution farm known as the Red Farm. A coat belonging to this patient was found in the motor vehicle of the claimant at the time the motor vehicle was recovered.”

We also quote from paragraph 10 of that letter:

“It is the opinion of the institution that the claimant is entitled to the damages contained in his complaint.”

Claimant testified that he resided on a farm on Route No. 2 near Jacksonville, Illinois, and that on the 14th day of May, 1953, he was the owner of the truck in question. He had left his truck in the field on his farm on that day while he went to his house about three-fourths of a mile away to obtain a spray outfit. He stated this all occurred about 12:00 M. After filling his tractor with gas, he returned to the field where his truck had been left, and found it was missing. He testified that upon leaving his truck in the field he had removed the keys from- the ignition. He borrowed a neighbor’s automobile, but did not find his truck until about 5:30 that evening south of Greenfield on the highway, and he had then notified the State Highway Police. When he found the truck, the motor was damaged materially by reason of its misuse by the escapee, Cecil Swizart.

The claimant identified the repair bill, which was in the amount of $758.12, and which was admitted in evidence by the Commissioner.

Claimant further testified to finding the jacket belonging to Cecil Swizart in the cab of his truck, and the returning of it to the State Hospital from which Swizart had escaped. He testified that the claim for damages was presented to the Department of Public Welfare, and that he had not since that time made an assignment or transfer of the claim, or any part thereof, to any individual. However, it does appear from the exhibits and testimony that his claim was assigned by reason of the signing of a subrogation agreement with his insurance carrier, Union Automobile Indemnity Association of Bloomington, Illinois, and that by reason of said contract it is subrogated to his rights in any recovery on this claim.

There appears to be no question from the record, and it was so found by the Commissioner, who heard the testimony, but that this is a case, which falls within the statute upon which this claim is predicated.

This Court has held the statute in question does not set forth the test to be applied in cases of this kind. Formerly, this Court found that there was nothing in the statute, which directed this Court to apply the test of absolute liability.

The position taken by respondent is that an award may be made for damag’es caused by escaped inmates when the record shows that claimant has established that his claim meets all of the statutory requirements. (J. W. Curran, Et Al vs. State, 21 C.C.R. 278.)

The respondent further takes the position that, under the statute, which was cited in Point I of its brief, any damage, which results from property being stolen by an escaped inmate of a charitable, penal, reformatory or other institution controlled by the state, may be recovered in the Court of Claims.

In the case of Dixon Fruit Company, Et Al vs. State, No. 4662, opinion filed March 16, 1956, we took the position that the statute was not one of absolute liability as far as respondent is concerned, and the mere fact that the Department of Public Welfare recommended the payment of the claim was not binding upon this Court.

The record is silent as to the patient, whether he had on previous occasions tried to.escape, and whether he was a patient, who should have been permitted to work in the fields, without careful supervision. In fact, we have nothing to govern ourselves as to whether or not the state was negligent in allowing this patient the freedom, which he aparently had; so that the truck in question was stolen, and consequently damaged.

In the absence of such a showing, we think claimant was correct in his advancement of the doctrine of res ipsa loquitur, and that the burden would be upon respondent to make some showing as to this patient, i.e., whether or not he was one, who could be trusted in the manner in which he was in this particular case to work out in the field, or whether he should have been confined to the institution under close supervision. There being nothing in the record pertaining to this patient, other than the fact that the truck was stolen by him and damaged, we have no alternative but to find in favor of claimant.

We find that the claim was filed with the Department of Public Welfare for damages to claimant’s truck by reason of being stolen by Cecil Swizart; that the Department recommended the payment of the claim, and that, as the record now stands, an award should be ' made. It further appears from the record that the claim was assigned by claimant to the Union Automobile Indemnity Association of Bloomington, Illinois, and, by reason of the assignment, it should have been claimant instead of Charles Finch. However, to avoid the necessity of sending this case back to have the proper party claimant substituted, it is the opinion of this Court that the claim should be allowed for the amount of damages shown by claimant’s exhibit No. 1 in the amount of $758.12, and that the Union Automobile Indemnity Association of Bloomington, Illinois, be paid the amount of the award instead of claimant, Charles Finch.


author: Tolson, C. J.

text:
    (No. 4647
    Edwin G. Peterson, An Incompetent Person, by Mildred Johnson, his sister and next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 28, 1956.

    Suekoff, Frost and Spiegel, Attorneys for Claimant.
    Latham Castle, Attorney General; Edward M. White, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On October 14, 1954, claimant filed his complaint in this Court seeking damages in the amount of $7,500.00 for injuries sustained while an inmate at the Chicago State Hospital.

The,record consists of the following:

1. Complaint.
2. Departmental Report.
3. Transcipt of evidence.
4. Claimant’s exhibits.
5. Stipulations.
6. Brief and argument of claimant.
7. Brief and argument of respondent.

The facts of the case are as follows:

On August 28, 1952, Edwin G. Peterson was committed to the Chicago State Hospital by the County Court of Cook County. On September 17,1952, he was diagnosed as a chronic alcoholic, and subject to epileptic seizures. He was assigned to a ward, and given ward duties.

Some time during the night of November 11, 1953, he suffered a seizure, and grasped a hot steam pipe adjacent to his bed. He sustained first degree burns to his right hand, second degree burns to his left hand, and contracture of the wrist. On November 26, 1954, Dr. Leopold de Alvare, a staff surgeon, submitted a report indicating that the left hand was deformed about 10%, and the right hand 25%.

An examination of the transcript chart and photographs discloses that Mr. Peterson was assigned to Ward CW-13 on the first floor. The room is approximately 85 x 22, and housed 48 beds. A radiator was located at the north end of the room in front of three windows, and was protected by a wire mesh or grill. To the right of the radiator, a vertical steam pipe was in place, which was not covered or protected in any way. The bed, which was occupied by Mr. Peterson on the night of November 11, 1953, was situated along the side of the vertical steam pipe at a distance of about six inches.

From the transcript of the record, it is evident that Mr. Peterson was assigned the third bed from the north wall on the west side of the room (not the bed adjacent to the steam pipe). However, it further appears from the transcript that such a bed assignment was not enforced rigidly, as Mr. Peterson testified that Mr. Wilson, an attendant, permitted him to move to another bed, when he complained about being disturbed by other patients going to the wash room (transcript, page 18).

This practice of moving about was confirmed by Mrs. Anna Vaughan, an attendant, who stated on page 53 of the transcript:

“Q. Did he always occupy that bed when you were on duty?
A. No, he would move from one bed to another.”

This Court, therefore, concludes that the fact that Mr. Peterson was not in his assigned bed, but was in the bed adjacent to the steam pipe, will not in itself act as a bar to recovery.

Claimant and respondent both cite the case of John Tomasheski vs. State, 17 C.C.R. 143, as authority in their behalf, and, because of the close similarity in fact, it will be discussed at length in this opinion.

John Tomasheski was a volunteer patient at Peoria State Hospital. He, too, was an epileptic, although that diagnosis does not appear in the record, and, in addition thereto, the Peoria Hospital does not ordinarily accept epileptic patients. In June of 1946, he went to the wash room, and while there suffered an epileptic attack. He seized an unprotected steam pipe located in a corner of the room, and suffered severe burns to his hands.

The Court denied a recovery on the grounds that the danger of the exposed steam pipe had never been brought to anyone’s attention, and further that the epileptic seizure was an intervening act, which caused the injury, so that it could be said that the intervening act, not the existing condition, was the proximate cause of the injury.

The Court at page 147 of the report stated:

“If we should conclude that the uncovered pipes create a condition so that an ordinary prudent person could have reasonably anticipated the accident in question, we must necessarily resolve the issues in favor of claimant.”

In the instant case, Mr. Peterson was a committed patient, not a volunteer; he was a known epileptic. The steam pipe was not located in a corner of the room, but was located within six inches of a bed in a ward, whether the bed was occupied by Mr. Peterson, or any other patient.

The most striking difference between the two cases can be found in the photograph of the ward received in evidence. It points out clearly that respondent took elaborate precautions to protect the patients from burns by placing a metal grill across the radiator, but did nothing to protect the steam pipe, which was equally hazardous.

In the case of O’Brien vs. State, 33 N.Y. Supp. 2-214, 11 A.L.R. 2-786, a patient in a New York Mental Hospital suffered a seizure, and grasped a “protective bar on a heated radiator”. The Court found the state to be liable on the grounds that the ward was inadequately staffed, and further that “Safety devices should have been effectively taken to avoid occurrences like this”. "

In the New York case, some effort had been made to protect the patients, while in the instant case nothing was done.

In the New York case, some effort had been made to the patients, entrusted to the Department of Public Welfare. The rule is set forth in 30 C.J. 467 No. 18.

“Degree of Care. The extent and character of the care that a hospital owes its patients depends on the circumstances of each particular case. A private hospital owes its patients the duty of protection, and must exercise such reasonable care toward a patient! as his known condition may require. This care extends to safeguarding the patient from dangers due to mental incapacity, and to the use of any instrumentality producing pain. However, these rules are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.”

The Court recognizes that patients suffering from epilepsy are prone to fall when in a seizure, and there are an unlimited number of ways that they can injure themselves, which cannot be anticipated by respondent. Since this is the unfortunate history of the disease, nothing contained in this opinion should be construed as requiring the state to exercise more than ordinary care.

However, the Court believes that the placing of a bed in a ward within six inches of an unprotected steam pipe is of' itself an act of negligence. The Court further finds that by placing a protective guard over the radiator, respondent recognized an apparent danger to others, but did not use ordinary care or judgment when it failed to recognize and protect the steam pipe connected to said radiator.

We, therefore, conclude that the uncovered steam pipe, adjacent to the bed, created a condition, so that an ordinary prudent person could have reasonably antieipated the accident in question, and, therefore, resolve the issues in favor of claimant.

An award is, therefore, made to claimant in the sum of $2,500.00.


text:
    (No. 4663
    White Electric Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 28, 1956.

    Carl H. Wilson, Attorney for Claimant.
    Latham Castle, Attorney General; Thomas G. Cronin, Assistant Attorney General, for Respondent.
   Fearer, J.

White Electric Company, A Corporation, filed its complaint in this Court on January 17, 1955. Attached to the complaint, marked exhibit A, and made a part thereof, was a contract with the- State of Illinois to construct for the Department of Public Works and Buildings a State Police Radio Station near Rock Island, Illinois. A portion of the contract price, namely $4,179.45, was paid to claimant on September 29, 1953, leaving a balance due of $1,357.55, which is the basis for the claim filed in this Court.

At the time of the hearing before the Commissioner a stipulation was entered into, which, in substance, stipulated that White Electric Company on April 13, 1953 entered into a certain agreement with the State of Illinois, contract No. 67877, for the complete furnishing and installation of the emergency power plant and connections at the Illinois State Police Radio Station near Rock Island, Illinois; that White Electric Company commenced work under said contract on September 2, 1953, and completed the work under said contract on January 4, 1954; that the work under said contract was approved by the Department of Public Works and Buildings, and that said contract called for a total payment in the amount of $5,537.00, of which the sum of $4,179.45 was paid on the 29th day of September 1953; that the balance due under said contract is $1,357.55, which has not been paid to claimant, the reason being that the money appropriated by the Illinois Legislature for said contract lapsed prior to the time of completion of the contract, and was not reappropriated by the Legislature; that no work remains to be done under said contract, and that the agents of the State of Illinois have expressed approval and satisfaction with the material, style, and the work performed by claimant under said contract.

The only witness called by claimant was Mr. Joseph P. Krouth, Vice-President and Supervising Engineer of claimant. He testified to substantially the same facts as set forth in the stipulation. In addition thereto, he testified as to the reason for the delay in commencing work from April until September 2, 1953. He stated claimant had to wait for the prints and approval thereof by the state architect in regard to the emergency generator set, and that, after that was cleared, the plant of the manufacturer, who was supplying the emergency unit, was on strike. In the contract there was a closing date as to when the contract was to be completed, which was ninety days, but that his company did not have full agreement with the State of Hlinois until sometime in September. In the meantime the company had negotiated with the state in regard to the starting of work in September of 1953, and the work was finally completed on January 4, 1954. He further testified that at that time the Division of Architecture and Engineering approved the work done in accordance with the-contract.

He identified claimant’s exhibit No. 2, which was offered and received in evidence. This was a letter dated February 10, 1954, which had been received on February 11, 1954, and was written by Louis H. Gerding, Supervising Architect. In this letter Mr. Gerding explained that his office had been advised by the Department of Public Safety that, inasmuch as the funds appropriated in the 67th biennium to cover the cost of work at the above captioned project were not reappropriated, and had lapsed September 30, 1953, consequently no funds were available to make payment with regard to this contract during the 68th biennium, and suggested that suit be filed with this Court.

The witness also testified that the claim had not been assigned, that the balance due thereunder had not been paid, and that demand had been made therefor.

Claimant’s exhibit No. 1, being the contract sued upon, was offered in evidence.

Respondent did not offer any testimony, bnt offered in evidence its exhibit No. 1, which was a letter written by Louis H. Gerding, Supervising Architect, to the Attorney General of the State of Illinois. In this letter the Supervising Architect explained that as late as June 17, 1953, which was 64 days after notification of the award, the final plans were still not agreed upon by the State of Illinois and the White Electric Company. He cited this merely for the purpose of showing that it would have been impossible for the White Electric Company to have completed their work within the ninety calendar days, as provided for in the contract. On August 12,1953, the Division of Architecture and Engineering wrote a letter to the White Electric Company notifying them that funds for the project concerning this contract would lapse on September 30, 1953. On August 18, 1953, the White Electric Company notified the Division of Architecture and Engineering that the contract could not be completed until 80 days after September 15, 1953. The contract was completed, and the work performed with full knowledge and acceptance of the Department of Public Safety subsequent to the lapsing of funds on September 30, 1953. The Department, in some manner or other, failed to list this project on their list for reappropriations, and a reappropriation was not obtained by the Department of Public Safety. The work relative to this contract was completed subsequent to the lapsing of the funds on September 30, 1953, and was done in a satisfactory manner. The work was inspected by the Department, and has been approved.

• Previously, this Court had occasion to go into the law on a motion filed by respondent to strike the complaint. In December of 1953, an order was entered by this Court overruling respondent’s motion. No additional briefs and arguments were filed by either claimant or respondent. However, at the time the motion to strike was filed by respondent, briefs and arguments were filed by both sides. In our order we discussed at length points and authorities cited by both claimant and respondent. Respondent contended that the work performed under the contract and the resulting expenses were incurred subsequent to the period in which the appropriation was effective; that, under Sec. 19, Art. IV of the Constitution, the General Assembly is prohibited from authorizing the payment of any claim or part thereof created against the state under any agreement or contract made without express authority of law. All such unauthorized contracts or agreements are null and void as being made without express authority of law. Furthermore, it contended that the instant claim was based on a void agreement, and said services were performed when no appropriation was in existence, therefore unauthorized, and no award can be made for such payment.

At the time of the passing upon the sufficiency of the complaint raised by the motion, and the points and authorities cited at that time, we were of the opinion then, and are still of the opinion, that the contract was authorized by law, and funds were appropriated and set aside with which to pay the contract price upon completion, approval and acceptance of the building by the Department of Public Safety.

Sec. 19 of Art. IV of the Constitution is referred to in the case of Fergus vs. Brady, 277 Ill. 272. This section of the statute only prohibits the General Assembly from authorizing the payment of any claim, • or part thereof, created against the state under any agreement or contract made without express authority of law. In that case reference was made to the provision, which authorized claims made under authority of law, and it said:

"In Sec. 19 claims under any agreement or contract made by express authority of law are excepted, and, if there is some particular and specific thing which an officer, board or agency of the state was required to do, the performance of the duty is expressly authorized by law.’’

At the time the contract was entered into, there were sufficient funds appropriated to pay the full contract price, and no questions have been raised as to whether or not the services performed were satisfactory, and the contract completed in accordance with the terms, plans and specifications set forth therein.

An award is hereby made to claimant, White Electric Company, A Corporation, in the amount of $1,357.55.


author: Wham, J.

text:
    (No. 4667
    Kaneville Grain and Supply Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 28, 1956.

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

This case involves a claim for damages in the amount of $1,434.32 based on the alleged negligence of an inspector, who was employed by the Department of Agriculture, State of Illinois, Weights and Measures Branch.

The facts are as follows: Claimant, Kaneville Grain and Supply Company, An Illinois Corporation, located at Kaneville, in Kane County, Illinois, and engaged in the business of selling general farm supplies, grain, feed, seed, hardware, lumber and building supplies, was the owner of a platform type scale, known as a Fairbanks Wagon Scale, which it used in its business. The platform of the scale was 22 feet in length and 8 feet in width. The pivots, brackets and other weighing levers were located beneath the platform, and the weigh-beam was located in the office of claimant adjacent to the scale platform.

On November 9, 1954, Mr. Joe M. Hess, while pursuing his duties as an Inspector of Scales for the State of Illinois, backed respondent’s 39,000 pound truck partially upon the scale platform in making an official inspection, at which time the platform collapsed into the pit, breaking the scales, rendering them inoperative, necessitating their repair, and resulting in the loss of use of the scale for a twenty day period.

Claimant’s witness, John Vincent Burns, a scale mechanic with the Fairbanks Morse Company, testified that there was a definite distinction between a wagon scale and a motor truck scale, namely, that a motor-truck scale was designed to carry its full rated capacity at any point on the scale, while a wagon scale is designed to carry its full rated capacity when distributed over the surface of the scale, and to carry no more than 60 % of its rated capacity at any given point on the scale. This was not disputed by respondent.

The particular scale in question was not designated as either a truck scale or a wagon scale. The only designation appearing thereon with reference to its capacity was the weigh-beam, which indicated a capacity of 30,000 pounds.

After the damage to the scale, it was converted from a wagon scale to a motor truck scale. No change was made in the beam, nor was the total load-bearing capacity increased. The only effect of the conversion was to thereafter allow the placing of the total capacity of 30,000 pounds upon one end of the scale without causing an overload.

The amount of weight placed on one end of the platform when the two rear wheels of the inspector’s truck were backed thereon was 29,960 pounds. This' amount would have been proper had the scale been of the motor truck type, but exceeded the amount, which could properly be placed on one end of a 30,000 pound capacity wagon type scale, by 11,960 pounds.

Mr. Hess testified that he did not know the scale was a wagon type, and stated that inspecting the beam was the only method he used to determine the amount of weight the scale could bear. He further stated that, aside from the capacity shown by the beam, in order to determine the type of scale, it would he necessary to go underneath the platform and inspect the working parts.

He testified that he looked at the beam of claimant’s scale prior to moving the back wheels of the truck thereon, and noted the capacity. He assumed, without further inquiry, that the scale was a motor truck type, and would bear the weight of the back wheels of the truck, being 29,940 pounds on one end of the platform. He estimated that only one out of one hundred scales inspected by him during the course of a year were wagon scales. Claimant’s witness, Mr. Burns, estimated that 5 to 10% of the scales used were wagon scales.

Mr. Bobert C. Landis, President of the claimant corporation, knew at the time of the accident that claimant’s scale was a wagon type. He testified that he was present when the inspector came into claimant’s office on the date in question, and announced he was there to test the scale. Nothing was said by Mr. Landis, nor did the inspector make any inquiry.

The same scale had been tested in March of 1953 by Mr. Hess, who, at that time, used a series of eighteen one thousand pound weights. He did not, on that occasion, drive his truck upon the scale for the stated reason that the rear wheels of the particular truck he was then driving weighed 31,600 pounds.

These are the pertinent facts appearing from the testimony. The determination as to whether respondent’s inspector was negligent in placing 29,960 pounds on one end of this particular scale rests upon the consideration of whether he should have determined the type of the particular scale before placing the weight thereon. If he had knowledge that it was a wagon scale, rather than a motor truck scale, then, under the evidence, he would have been clearly negligent in placing that much weight on one end of the platform.

The testimony of claimant’s witness Burns, which was undisputed by respondent, established that a wagon scale could not be subjected at one end of the platform to more than 60% of the scale’s total capacity, which percentage in this instance amounted to 18,000 pounds. From these facts, the scale was overloaded by 11,960 pounds.

Although the law, in our judgment, would not require- an inspector to make a search under the platform in order to determine the type of scale he was to inspect, we believe that a reasonable inquiry from claimant’s officers or employees should have been made before the testing began. Mr. Landis, President of claimant company, knew this fact, was present in the office when the inspector arrived, and would have given the information if asked.

The inspector knew that there were at least a few wagon scales in use in his territory, and could not assume that this particular scale was not one of them merely from an inspection of the beam.

Respondent contends that the scale’s capacity of 30,000 pounds appearing from an inspection of the beam is determinative of the question, and that the inspector was entitled to presume therefrom that the scale was a motor truck scale, 30,000 pound capacity, and would withstand the full capacity upon one end of the platform.

We do not subscribe to this reasoning.

Nothing in the “Tolerance and Specifications on Weights and Measures and Weighing and Measuring Devices” offered by respondent as exhibit No. 2, attaches such meaning to the stated capacity.

The particular portions thereof cited by respondent are as follows:

Scales, general specifications — 1, page 45, “The nominal or rated capacity of a scale is the largest weight indication, which can be obtained by the use of all its reading or recording elements in combination”. Sec. 2, page 46, “All scales not equipped with a beam or reading face graduated to the full capacity of the scale, and those not equipped with a graduated beam or reading face, which, taken into connection with another graduated beam or beams or with a graduated runner, indicates the capacity of the scale, shall have the normal or rated capacity conspicuously, clearly, and permanently marked upon them”. Sec. 3, page 46,, “All scales shall be of such construction that they will support a load of maximum capacity without undue bending or straining of the parts”.

To us, these regulations simply mean that a particular scale must be capable of supporting and weighing a load of the stated capacity, and have no reference to such scale bearing the entire capacity when placed upon only one end of the scale.

The 30,000 pound capacity appearing from the beam of claimant’s scale in no way indicated whether it was a wagon scale or a motor truck scale.

Respondent’s contention that Mr. Landis was negligent in failing to so designate the type of this scale is not well taken. The regulations made no such requirement,' nor did he have reason to believe that the inspector' would drive his truck upon the scale, inasmuch as the inspector had never done so before, and had always tested the scale by using several movable test weights of one thousand pounds each.

The evidence established that the scale had been placed in good working condition during the summer months of 1954, and it is reasonable to presume it was in good condition on the date in question, since it had been used continuously in claimant’s business.

We, therefore, find from the evidence that respondent was. negligent by reason of the inspector failing to make reasonable inquiry to ascertain the type of scale before making the test with the amount of weight used, that claimant was free from contributory negligence, and that respondent’s negligence was the proximate cause of the damage to the scale.

The evidence established that subsequent to the occurrence the scale was converted to a motor truck scale, and repaired for a total cost of $1,018.14. It was further established that said amount was less than would have been required had the necessary parts for repairing a wagon scale been procured, inasmuch as they were no longer in production, and it would have been necessary to make them by hand.

Claimant also- contended that it lost business profits during the 20 day period required to repair the scale. Testimony with respect to this element of damage was speculative in nature, being based solely upon business in previous years during the same comparable period of time. The record is silent as to whether any attempt was made by claimant to procure the use of a suitable scale in the locality during the period this scale was unusable. We have no way of knowing whether the amount claimed, to-wit, $560.00, is reasonable, and within the cost of temporarily renting the use of a substitute scale. For us to fix an amount on this element of damage would be absolute speculation on our part. We, therefore, will deny this portion of the claim.

From the record submitted to us, we believe the portion of the claim based upon the cost of repairing the scale should be allowed, and, therefore, award claimant the amount of $1,018.14.


text:
    (No. 4706
    Francis E. O’Keefe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 28, 1956.

    Melvin A. Garretson, Attorney for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Francis E. O’Keefe, filed Ms complaint in this Court on January 24,1956 for property damage to his 1951 Tudor Studebaker sedan. The accident occurred in the forenoon of August 30, 1954 on the United States Government Reservation, Hines, Illinois, where National Guard motor equipment, owned by respondent, was kept.

From the evidence, it appears that claimant’s automobile was damaged while parked in an area reserved for equipment used by the Illinois National Guard; that there were signs of “no parking at any time”, and that said signs were in existence on the date of the accident.

Two blocks from where the accident occurred was a civilian parking lot, which was familiar to claimant.

Claimant was employed as a teclmician for Armour Research Foundation, and on the day in question had driven and parked his car near the “concentration of equipment site” for the purpose of getting a tank to be used in experimental purposes.

Respondent’s agent, Charles H. Cole, at the time of the trial had been discharged from the National Guard. He had driven a % ton truck to the field maintenance shop at Hines. Other trucks and equipment had preceded him there, and were parked about the area when he drove into one of the buildings. The accident occurred when he backed out onto the concrete slab, making a turn to turn the truck around. At the time he drove into the building he did not notice claimant’s vehicle, but did observe that there were other vehicles parked in and around the area. In backing said truck out, he struck claimant’s vehicle on the right rear fender damaging it, as well as the trunk. The amount of damages, as represented by a paid repair bill, was the sum of $131.91.

Only two witnesses testified at the trial, claimant and respondent’s agent, who was operating the % ton truck. Respondent offered its Departmental Report and several photographs, which showed the location of the buildings, and the location of claimant’s vehicle at the time it was struck by respondent’s vehicle in backing out of one of the maintenance buildings.

Respondent not having filed an answer, a general traverse or denial of the facts set forth in the complaint shall be considered as filed under Rule 11 of this Court.

It is apparent from the evidence that claimant’s interest is only to the extent of his $50.00 deductible, as the balance of the claim was assigned to State Farm Insurance Company, Bloomington, Illinois. This being the case,. State Farm Insurance Company should also be a claimant, as the rightful owner of the claim in excess of the $50.00 deductible.

Neither claimant nor respondent elected to file briefs and arguments, supported by authorities.

There is very little dispute as to the occurrence in question.

After having considered all of the evidence, including the Departmental Report and the exhibits offered, as well as the finding of the Commissioner, who tried the facts in this case, we are of the opinion that claimant has not established his case by a preponderance of the evidence by first proving that he was free from contributory negligence, and that it was the negligence of respondent’s agent, which was the proximate cause of the damage to claimant’s vehicle. It appears to us that claimant was cognizant of the vast number of vehicles traveling about the area where he elected to park his car; that the zone had been restricted by no parking signs; and, that it was his negligence, which contributed to the damage to his property.

We also find that respondent’s agent was also negligent in the manner in which he backed the truck out of the building preparatory to making a turn. We are denying the claim, however, because of claimant’s contributory negligence.

Claimant’s claim is, therefore, hereby denied.


text:
    (No. 4643
    Paul Frega and Reinhardt Frega, Co-partners, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 26, 1956.

    Lathrop J. Hunt, Attorney for Claimants.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

Claimants in this case are truck farmers, in the vicinity of St. Charles, Illinois, and are engaged in raising vegetables, which are sold on the Chicago market. They claim damages arising out of spraying operations, which were conducted by the State of Illinois, Division of Highways, along the highway bordering their field. They allege in their complaint that respondent, while engaged in spraying weeds along the right-of-way on September 1, 1954, negligently sprayed a chemical onto their growing vegetable crop, damaging claimants in the amount of $2,520.00. Despondent contends that the spray used was neither poisonous for human consumption nor detrimental to crops, which had matured at the time of application.

We have considered the record in this case, and find that claimants have borne the burden of proving that respondent’s agents were negligent in so operating the spray rig that a portion of claimants’ vegetable crop was subjected to whatever effect the chemical has upon vegetables. We do not deem it necessary to analyze the evidence on this point, but will confine our discussion to what we believe, to be the primary question involved, namely, what damage, if any, proximately resulted from the negligent spraying operations. It is fundamental that the burden of proving this element is upon claimants. The proof required to establish damages must not be remote, speculative nor uncertain.

The measure of damages to growing, immatured crops is the value of the crop as it was when destroyed. This is determinable by ascertaining the amount of the matured crop affected and its market value, and deducting therefrom the necessary cost of cultivation, harvesting and marketing of the crop.

The spray involved was a weed killing compound containing a substance known as 2, 4-D acid. Respondent’s witness, William J. Champion, Vice-President of the Riverdale Chemical Company, who qualified as an expert chemist familiar with this particular spray, described the effect of the spray as a selective weed killer that kills broad leaved plants through hormone action, which affects the growing system of the plant. He further testified that the spray was non-poisonous, would not render the vegetables inedible,, and would have no effect upon matured vegetables, but would, however, affect the growth of non-matured vegetables, if applied to the plant during the period of growth.

Both claimants testified as to the types and amounts of vegetables upon the land sprayed. Their testimony, however, leaves much to be desired, since it was based to a considerable extent upon guess, speculation and surmise.

' Mr. Reinhardt Prega stated at one point that the bean plants, which were sprayed, were killed, and the beans at the time of the spraying were a week from becoming mature. At another point in his testimony, however, he stated that there were no beans on the plants at the time of the spraying. He also stated that one-third of the plants were completely killed off. Mr. Paul Frega testified that some beans in the affected area later developed partly, but were crooked. He stated that no attempt was made to dispose of the beans, which did develop-.

Respondent’s witness, Richard Kress, landscape engineer with the Hlinois Division of Highways, Elgin District, testified claimants called his office in the evening of the day the spraying took place, complained, and requested that state personnel inspect the crops. An inspection was made the next day, and a report made to Mr. Kress, who then visited claimants ’ land five days later.

While on the land, he was conducted on an inspection tour by one of the claimants. He asked claimants what was the trouble, and was told that claimants were afraid to sell the crops, because they were poisoned. Mr; Kress informed claimants that the spray was not poisonous, and demonstrated this fact by eating a piece of cabbage leaf that had been sprayed. He stated that he observed the condition of the bean plants, and that at one end of the field some of the plants were not doing well, but looked to him as though there had been erosion. He further stated the beans looked normal to him, as did the leaves on the plants.

Mr. Reinhardt Frega testified with respect to the amount of beans affected. There were 18 rows of beans, 390 to 400 feet in length, in one field, which he thought should have produced 100 bushels in three pickings; there were 20 rows of beans in another field, 240 to 335 feet in length, which the witness said he couldn’t say exactly how much the yield would have been. He did, however, in answer to a leading question say, with reservation, 180 bushels. When recalled as a witness on rebuttal, he stated, in answer to a question of what percentage of the bean plants were destroyed, that one-third of the plants in each of the fields were destroyed.

With respect to the other crops, the testimony was more indefinite and speculative with respect to the amount of crops damaged. Mr. Reinhardt Frega testified that, out of 18 rows of cucumbers, 16 had been picked, some before and some after the spraying. He admitted he had no idea as to the number of cucumber plants in the patch. With respect to cabbages and cauliflower, his testimony was so general that we cannot determine the extent of the damage to these crops. He stated that three-fourths of the cabbages were ready to be picked at the time of the spraying, but the cauliflower was not. With respect to tomatoes, he testified they had been partly picked. He stated that there was one-third of the crop left when the spraying occurred. He did not state the degree of maturity of these tomatoes.

It is most difficult to determine from the evidence offered by claimants in this case just how extensive the damage to their crop was. Although there is no question but what some of the spray came upon their land, we cannot believe that the entire crop was saturated with the spray from the evidence offered in this case. Claimants testimony is not definite, and in many instances amounts to pure guess and surmise.

With respect to the claim for damage to the cucumbers, cabbages, cauliflower and tomatoes, we do not consider the evidence sufficient to establish a considerable loss for two reasons. First, with respect to the portion of those crops that were matured, the only evidence on the point establishes that the spray would not adversely affect matured crops. No attempt was made by claimants to offer any evidence to the contrary, nor does the evidence reflect an attempt by claimants to market the vegetables. Second, as we have said before, the evidence is much too speculative 'with respect to the extent of damages to provide any basis for us to properly arrive at a justifiable conclusion.

It is only with respect to the beans that we feel the evidence is sufficient to allow us to draw legitimate inferénces and conclusions, which will support an award in an ascertainable amount of money.

The evidence established that the beans were immature, and upon respondent’s testimony could definitely be affected by an application of the spray. Although the evidence as to the amount of damage is sketchy and to some extent conflicting, we believe it to be sufficient to establish by a slight preponderance that one-third of the potential bean crop was destroyed. This, from the most favorable standpoint to claimants, amounts to approximately 93 bushels.

■ The evidence established that the price of beans was $5.50 per bushel at the time they would have been sold, making a total of $511.50. From this amount must be deducted the cost of cultivating, harvesting and marketing the crop. The evidence on this point is likewise so unsatisfactory that no definite amount can be ascertained. The only evidence on this point was brought forth by respondent on cross-examination, which established that baskets cost 224 each, and the labor would have been performed, and the crops transported by claimants themselves.

It is difficult for us to arrive at a proper amount to deduct from the market price of the beans, but believe at the least that the cost of cultivating, marketing and transporting, the 93 bushels could not have been less than $1.00 per bushel.

Therefore, we believe that, although much is left to be desired in the proof of this case, the claim should be allowed in the sum of $418.50.


text:
    (No. 4624
    W. Eugene Dorris, Administrator of the Estate of George Rapach, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1956.

    G. William Horsley and W. G. Eovaldi, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

W. Eugene Dorris, Administrator of the Estate of George Rapach, deceased, filed his complaint against respondent for the alleged wrongful death of claimant’s intestate.

The record consists of the following :

1. Complaint.
2. Departmental Report.
3. Reply to Departmental Report.
4. Transcript of evidence.
5. Abstract of evidence.
6. Statement, brief and argument of claimant.
7. Statement, brief and argument of respondent.
8. Reply brief of claimant.

Respondent did not file an answer to the complaint, hence, under Rule 11 of the Court of Claims, a general traverse shall be considered as filed.

The complaint consists of Three Counts:

(a) Count One alleges that respondent failed to provide suitable care and supervision of another patient, which resulted in injury and death to the intestate.

(b) Count Two alleges that respondent, by its agents and servants, negligently treated the intestate’s injuries, which resulted in his subsequent death.

(c) Count Three is in the alternate alleging that, if he is not entitled to recover under Count Two, he is then entitled to recover for funeral expenses, probate fees and attorney’s fees.

Upon oral arguments, counsel for claimant conceded that the evidence would not support Count One, and, as to Count Two, the pecuniary loss consisted of the balance of a government check in the amount of $6.00 per month projected for the life of the intestate according to the usual mortality tables.

The facts of the case are as follows:

George Eapach was admitted to Lincoln State School on July 19, 1949, and was a patient in said institution until the time of his death on September 16, 1953. He was a severe Parkinsonian, which affected his speech, and limited his mobility. Because of the numerous falls he had suffered,- a special gear was provided to protect his head.

On September 14, 1953, at about 3:30 P.M., he went to the wash room with John Sparazinski, a fellow patient. Trouble developed between them, and John either hit or kicked him in the abdomen. George was put to bed, and at about 4:00 P.M. Dr. Azubalis made his initial examination.

Dr. Azubalis testified that he was unable to understand George’s account of the injury, because of the speech impediment. He stated the pulse was normal, temperature was normal, and breathing was normal. George would state that the area of injury hurt, and then he would say it did not hurt. There was also a report that George had vomited.

Because of previous falls, he had numerous yellow patches on his body of a similar nature. (Deposition, Page 25).

Dr. Azubalis ordered a routine blood count — sedimentation rate, ice packs and penicillin, but at this time he was unable to make a diagnosis.

On September 15, at 9:00 A.M., Dr. Azubalis made his round of the ward. He examined George, and found that his temperature had risen to 101, and pulse 128. He stated that he examined the blood picture, and found a slight elevation of the white count, but the sedimentation rate was normal. The injured area was examined, but there was no tenseness of the muscles. He further stated that he found a subcutaneous blood suffusion in his scrotum. At this time, Dr. Azubalis suspected internal bleeding. (Deposition, Page 35).

He then ordered hot and cold packs, and about 1:00 P.M. conferred with Dr. Albaum, the Staff Surgeon. There is some conflict in the testimony as to the nature of this conference, as Dr. Azubalis stated that he believed he suggested an exploratory. Dr. Albaum denies that an exploratory was recommended. He further stated that the decision to operate was his responsibility, and that he did not believe that the medical history warranted an exploratory, because of the danger connected with the operation. He, therefore, ordered a further blood count and conservative treatment.

It appears from the evidence that, if the suspicion of internal bleeding was correct, an X-Ray would not have disclosed this fact. However, it appears that an X-Ray might have disclosed a collection of gas in the bowel, indicating a rupture of the intestine.

The record also shows that the patient was examined by Drs. Vladimir Magier and Thinathin Alschibaja, who recorded their findings on the hospital chart, but did not confer or make any recommendations for treatment.

Dr. Albaum testified that he examined the patient at 1:00 P.M. on September 15. He considered either internal bleeding or a ruptured bladder as a possible diagnosis, but felt that the evidence was incomplete to make a definite diagnosis, and ordered conservative treatment.

He stated that he again examined the patient at 6:00 P.M. and at 9:10 P.M., and at the latter time the patient was in shock, the abdomen was rigid and distended, and it would have been impossible to operate.

The patient died at 7:00 AM. on the 16th of September, and an autopsy disclosed a rupture of the small intestine, resulting in peritonitis.

The degree of care required by a physician and surgeon is set forth in Olander vs. Johnson, 268 Ill. App. 89 at page 95:

“The duty which a physician and surgeon owes his patient is to bring to the case at hand that degree of knowledge, skill, and care, which a good physician and surgeon would bring to a similiar case under like circumstances. While this nile, on the one hand, does not exact the highest degree of skill and proficiency- attainable in the profession, it does not contemplate merely average merit. (Holtzman vs. Hoy, 118 Ill. 534; 21 R.C.L. Physicians and Surgeons, Sec. 27.)
To this extent he is liable and no further. He is not required to possess the highest, but reasonable skill. The burden of proof is upon the plaintiff in an action for malpractice to show the want of such care, skill and diligence, and also to show that the injury complained of resulted from failure to exercise these requisites. (McKee vs. Allen, 94 Ill. App. 147; Goodman vs. Bigler, 133 Ill. App. 301; 21 R.C.L. Physicians and Surgeons, Sec. 49.)
Negligence is always a question of fact that must be alleged and proved as averred. It cannot be supported by a mere conjecture or surmise, but must be made referable to some specific cause or defect. (McCormick Harvesting Machine Co. vs. Gabris, 130 Ill. App. 624, 631; Pioneer Fire Proof Construction Co. vs. Sandberg, 98 Ill. App. 36.)
Before a plaintiff can recover in a malpractice case, it must be shown by affirmative evidence, first, that defendant was unskilful and negligent, and second, that his want of skill and care caused injury to the plaintiff. If either element is lacking in the proof, no case is presented for the consideration of a jury. (Ewing vs. Goode, 78 Fed. 442; Moline vs. Christie, 180 Ill. App. 334; Wallace vs. Yudelson, 244 Ill. App. 320; Sims vs. Parker, 41 Ill. App. 284; McKee vs. Allen, supra; Phebus vs. Mather, 181 Ill. App. 274; Graiziger vs. Henssler, 229 Ill. App. 365.)
Mere conjecture or supposition should not be sufficient to overcome the presumption in favor of the attending physician. Alleged negligence and resulting injury must be proved as averred. A physician is not an insurer. (Goodman vs. Bigler, supra; Sims vs. Parker, supra; Blodgett vs. Nevius, 189 Ill. App. 544; Wallace vs. Yudelson, supra; Graiziger vs. Henssler, supra.) Proof of a bad result or of a mishap is of itself no evidence of negligence or lack of skill. (Sims vs. Parker, supra; Moline vs. Christie, supra; Blodgett vs. Nevius, supra.)
The doctrine of res ipsa loquitur is not applicable to situations like the case at bar, (Guell vs. Tenney, 262 Mass. 54, 159 N.E. 451; Funk vs. Bonham (Ind. Appr.), 151 N.E. 22; Goodman vs. Bigler, supra; Graiziger vs. Henssler, supra), for, unless the accident or injury sustained by the plaintiff bespeaks the defendant’s wrong, there, is no proof of culpable negligence. (Chicago & E. I. R. Co. vs. Reilly, 212 Ill. 506.)
As a general rule, there must be expert testimony to show that a bad result was caused by the alleged unskilful or negligent act. (Moline vs. Christie, supra; Goodman vs. Bigler, supra; Kruger vs. McGaughey, 149 Ill. App. 440; Nelson vs. Sandell, 202 Iowa 109, 209 N.W. 440; 46 A.L.R. 1447.)”

Claimant has alleged negligence in Counts Two and Three of the complaint. However, there is no direct expert testimony to show that a bad result was caused by an alleged unskillful or negligent act.

Taking the evidence most favorable to claimant, it appears that there was evidence of vomiting, an increase of pulse and temperature as the case progressed, and a statement by one of the doctors that, if the diagnosis of a ruptured intestine had been made at an earlier stage, an exploratory would have revealed the condition, and there would have been a fair chance of saving the patient.

Counsel also argues plausibly that, since George Rapach was unáble to talk adequately to disclose subjective symptoms, the medical staff should have ordered X-Rays in the hope that something would have been revealed.

Respondent argues with equal force that the speech impediment prevented the staff from determining subjective symptoms, and that the discolored area was simply one of a dozen such discolorations appearing on the patient’s body.

Respondent finally urges that the patient received the best of hospital care. In a period of forty hours, four doctors and a staff of nurses made every reasonable effort to diagnose the nature of the trouble, and all standard procedures were followed. Until the patient went into shock, it could not have been said with medical certainty that the patient suffered from peritonitis.

Prom a reading of the record, we believe that respondent made a genuine effort to diagnose and treat the patient. There is no evidence of neglect, despite the bad result. We do not believe that claimant has met the burden of proof required in a malpractice case; therefore, an award is denied.


text:
    (No. 4565
    Lettie Mae Claiborne, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    Wynn, Hafter, Lake and Tindall and Gillespie, Burke and Gillespie, Attorneys for Claimant.

      Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

This case involved an accident between a State of Illinois truck, which was spreading cinders on an icy highway, and an automobile enroute south on Route No. 66 near its intersection with State Highway No. 52 near Plainfield, Illinois. The evidence showed that claimant’s car was being driven by a friend with permission of the owner, and that it left the south side of Chicago at about 11:00 P.M. on the night of January 21, 1953. The accident occurred at approximately 2:30 A.M. on the morning of January 22, 1953.

Further evidence showed that the highway was very slick, and the state truck was being used to spread cinders at the icy intersections and on hills. Claimant’s car had been following along behind the truck for five or six miles prior to the time and place of the accident. James L. Claire, the truck driver, testified that, as he reached the top of a hill about 500 feet north of the Route No. 66 and Highway No. 52 intersection, he noticed the car behind him, and remarked that it was following him pretty closely. He stated that, as he started down the incline, he applied his brakes in order to slow up, so that his helper, Robert Schwartz, could get out of the truck, and go to the rear to start the cinder spreader. As he applied his brakes, the truck began to skid, and at about that time claimant’s car struck the rear of the truck. The driver of the truck stated that he was traveling about fifteen miles an hour, and that his courtesy lights, tail lights, a revolving red light on top of the cab, which flashed both to the front and rear, a red light hanging on the left rear corner of the truck, emergency lights on the cab, tail light and stop lig'ht were all burning.

The driver of claimant’s car did not testify. The only testimony on claimant’s behalf was given by claimant’s husband, who was a passenger in the car at the time of the accident, and claimant, owner of the car, in a deposition taken at Greenville, Mississippi by agreement of the parties.

A stipulation was entered into between the parties that the damag’e to claimant’s car amounted to $487.32.

An examination of the transcript of evidence and the deposition of James Claiborne discloses a sharp conflict in the evidence. James L. Claire, the driver of the truck, and Robert Schwartz, his helper, both testified that at the time of the accident the truck was lighted with courtesy lights, tail lights, and a flasher light on top of the truck was in operation. Mr. Claiborne testified that only the tail light was visible. Both employees stated that the truck went into a skid, as the brakes were being applied preparatory to a stop, so that the helper could get out of the truck and start the cinder spreader, but that they were hit by the Claiborne car before they came to a stop.

Mr. Claiborne testified that the truck was stopped, and was blocking the highway, when his wife’s car hit the truck.

It is to be noted that neither Mr. Claire nor Mr. Schwartz were employees of the State Highway Department at the time of the hearing, so there would be little inducement for them to testify, in a favorable manner, on behalf of respondent. Further, since this accident happened at 2:30 A.M. on a slippery road, it would seem reasonable that the highway truck would be using all available lights.

We have held that the state is not an insurer against all accidents, which may occur on its highways.

Lipscomb vs. State of Illinois, 21 C.C.R. 453.
Kamin vs. State of Illinois, 21 C.C.R. 467.
Beenes vs. State of Illinois, 21 C.C.R. 83.

We have also held that the burden of proof is upon claimants to establish their cases by a preponderance of the evidence.

Martin Jackson Porter vs. State of Illinois, 21 C.C.R. 116.
Daly, Et Al vs. State of Illinois, 21 C.C.R. 610.
Williams, Et Al vs. State of Illinois, 21 C.C.R. 597.

This record discloses a regrettable accident caused by a slippery road wherein neither party was at fault.

We, therefore, find that claimant has not sustained the burden of proof, and, therefore, the claim must be denied.