author: Fearer, J. Wham, J.

text:
    (No. 4794
    William Mathis and Iowa National Mutual Insurance Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959,

      Judge Wham dissenting.

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

This case arises out of an accident, which occurred at approximately 8:15 A. M. on August 9,1957 on Illinois Route No. 78, approximately three-fourths of a mile south of the City of Prophetstown, Whiteside County, Illinois.

The record consists of the following:

1. Complaint

2. Departmental Report

3. Transcript of evidence

4. Abstract of evidence

5. Supplement to the record

6. Brief and argument of claimants

7. Statement, brief and argument of respondent

8. Commissioner's Report

A hearing was had in this case before Commissioner Presbrey on June 28, 1958.

At the time and place in question, claimant, William Mathis, was driving his 1957 Pontiac in a southerly direction at or near the stockyard, the drive of which was located on the east side of the road just north of the crest of the hill where the accident occurred. The entrance or apron to the yard was about 100 to 150 feet wide.

Claimant, William Mathis, was on his way to work at the time of the accident. He was very familiar with the road, as it was the one on which he traveled to his place of employment, the Yorktown Lumber & Grain Company, where he was employed as office manager.

The weather was clear, the pavement was dry, and, as he approached the crest of the hill, knowing that the entrance to the stockyard was on the east side of the road, he looked to the left to determine whether or not there were any stock trucks pulling out onto the pavement. He could not see down the hill until he reached the crest, and it was approximately 200 feet from the crest of the hill to where the accident occurred.

There was no traffic behind or in front of him at said time, and he was driving at approximately 50 to 60 m.p.h. His attention was first called to. a State Highway truck located on the west shoulder of the road, which he was traveling, with a man standing near it, and a man, whom he later learned was a State maintenance man, with his back towards him pouring tar, and working on the surface of the southbound traffic lane. He also noticed a truck traveling on the east side or northbound traffic lane, being a tractor-trailer driven by Carl Swanson, who testified at the hearing as to the location of the State truck and the State maintenance man working on the southbound traffic lane.

Claimant immediately applied his brakes, and turned into the northbound traffic lane. The tractor-trailer pulled to the shoulder of the road on the east side. Claimant’s automobile turned counter-clockwise, and struck the left front portion of the trailer proceeding in a northerly direction.

The State employees were Rankin. Murphy and Frank Weber, who were completing the patching of a portion of the highway in the southbound lane of travel, the patch being approximately 2 feet by 8 feet in size.

There is a slight discrepancy as to the distance from where the men were working to the crest of the hill. Mr. Weber testified that it was 250 feet from the crest of the hill to the scene of the accident, and claimant testified that it was from 150 feet to 200 feet south of the crest of the hill.

The record is clear as to the fact that the State employees, prior to commencing their work on the highway, did not erect metal or other signs warning traffic of the repair work in progress. Employees of the Division of Highways had been previously ordered when doing work of this nature on State highways to erect signals, signs, flags or other devices warning motorists of the presence of men on the highway doing repair work. This was both for the protection of motorists traveling upon said highways, as well as the State employees themselves.

There is no question but what the entrance on the east side of the road was familiar to the traveling public within that vicinity. It was a dangerous spot, being located near the crest of the hill, so that it was only normal that people familiar with the truck entrance would first look to the east to determine whether or not there were any trucks turning in or coming out of the yard. This is what claimant did, so that he was within 150 feet to 175 feet of Rankin Murphy when he first noticed him pouring tar on the highway. He immediately applied his brakes, and his car swerved. He turned onto the northbound traffic lane on the 18 foot highway, and came into contact with the tractor-trailer of Mr. Swanson, who was driving in a northerly direction. Mr. Swanson applied his brakes, turned the tractor to the right, and reduced his. speed to 35 to 40 m.p.h. He pulled the tractor off onto the shoulder, the trailer remaining in the northbound traffic lane, so that the impact took place on the shoulder on the east side of the road with the right front fender and right door of claimant’s automobile and the left front of the trailer, approximately 30 to 35 feet north of where Mr. Rankin was working.

There was some question in regard to the car skidding when it hit a portion of the wet tar coated with pea gravel, which had been placed there by Frank Weber, who was standing off on the shoulder at the time of the impact.

Rankin Murphy during all this time did not leave the southbound traffic lane, but continued to work -with his back facing north until after the collision. There appears to be no question but what he was standing upon the paved portion of the highway as claimant came over the crest of the hill, and when Mr. Swanson was driving his tractor-trailer north.

Respondent did not file an answer, so, therefore, a general denial or traverse of all allegations will be considered.

A Departmental Report was filed and received in evidence, and no question was raised as to the jurisdiction of the State of Illinois, Division of Highways, of this particular highway at the time of the accident. The Report also sets forth, and the statements are borne out by the evidence, that the concrete pavement at the location in question was 18 feet wide; that the pavement was bordered on each side by a concrete gutter section 3 feet in width; and, that an earth shoulder 10 feet in width exists back of each gutter section. The flag of each gutter is 18 inches wide, thus making each lane of travel 10% feet wide.

It appears from the Departmental Report that there were no signs in place either north or south of the accident site to indicate that highway maintenance operations were in progress. There was evidence, and it so appears in the Departmental Report, that skid marks were laid down both by claimant’s automobile and Mr. Swanson’s truck.

At the time of the accident claimant was 41 years of age, and was working for the Yorktown Lumber & Grain Company as office manager with a take-home pay of $82.52 a week.

Claimant was thrown from his vehicle, and was rendered unconscious for a short period of time. The injuries testified to consisted of a concussion, which resulted in double vision for approximately six weeks; and, abrasions of the scalp, which caused headaches for several months.

Claimant was removed from the scene of the accident by ambulance to a hospital in Morrison, and was hospitalized three days. He was home in bed two weeks, and returned to work one month later on a temporary basis. It was six weeks before he returned to work full time. He lost $340.00 in wages.

From the exhibits offered in evidence, it appears that claimant incurred doctor bills of $34.00, hospital expenses of $85.25, and ambulance bill of $15.00, which coupled with the loss of earnings make a grand total of $484.00.

Claimant, William Mathis, had a $50.00 deductible feature on his collision insurance policy with claimant, the Iowa National Mutual Insurance Company.

Count II is a claim on behalf of the Iowa National Mutual Insurance Company, in which the damages to claimant’s vehicle are set forth, as well as the settlement made with claimant, William Mathis, on August 21, 1957. This data is further corroborated by claimant’s exhibit No. 2, an affidavit executed by John F. Mansfield, an adjuster for the Iowa National Mutual Insurance Company, which is as follows:

“TO WHOM IT MAY CONCERN:
I, John F. Mansfield, adjuster for the Iowa National Mutual Insurance Company, 605 Kahl Building, Davenport, Iowa, do depose and declare that on behalf of my company I effected a settlement with our policyholder, William Mathis, Prophetstown, Illinois on August 21, 1957. Said settlement was under this insured’s collision policy FAP 20 154 583, which contained a $50.00 deductible clause on his 1957 Pontiac Convertible, Motor No. P857H-2308. Mr. Mathis’ car was a total loss with a market value (new) of $3,100.00. Our auto damage appraiser's survey indicated this car should be depreciated in the amount of $300.00 due to 12,959 miles usage. After applying this depreciation of $300.00 and the $50.00 deductible, I effected a cash settlement with the insured in an amount of $2,750.00. Since net salvage recovery, after payment of towing and service charges of $23.00, was $317.00, the total loss to the company from this accident was $2,433.00. This figure of $2,433.00, plus our insured's $50.00 deductible, constitutes $2,483.00, which is our subrogation demand total. The salvage was sold to the Silvis Auto Wreckers on the basis of a high competitive bid of $340.00. Bearman’s bid was $325.00.
(Signed) John F. Mansfield, Adjuster
Iowa National Mutual
Insurance Company”

Many authorities have been cited by claimants and respondent concerning the question of negligence and contributory negligence. There is no question but what the State of Illinois is not an insurer of motorists upon the highways, but the State does owe to the traveling public, and the traveling public has a right to expect that employees of the State will not create conditions in hazardous locations, such as the' one in question, which could result and become the proximate cause of injury to it.

We have taken into consideration the location of the accident, being relatively close to the crest of the hill, which would obscure the vision of a motorist traveling in a southerly direction without any warning whatsoever that there was work being performed on or in his lane of travel. The men working on the highway in claimant’s lane of travel did create a condition, which required him to act under circumstances, which we consider would amount to a sudden emergency, particularly in view of the fact that he was familiar with the truck entrance on the east side of the road, and that he was not traveling at an unreasonable rate of speed considering the traffic, and the travel and use of the way prior to his reaching the crest of the hill.

In view of the fact that claimant was not warned that there was work being done in his traffic lane, and in view of the fact that he could not see the man on the highway pouring tar, or the truck traveling north, until he reached the crest of the hill, he had very little time for deliberation, and, he was, therefore, confronted with a sudden emergency. It appears from his actions that he acted as any ordinary prudent person would have acted under the same or similar circumstances, i.e., applied Ms brakes immediately, turned his automobile away from the man in front of him, and onto and across the fresh tar and pea gravel, which could very easily have caused Ms car to go out of control and into a skid. From his actions and the physical facts, we cannot find that Mr. Mathis was guilty of negligence, which was the proximate cause of the accident resulting in his injuries..

We believe that claimant has maintained the burden of proof that it was the negligence of respondent’s employees in not erecting signs warning motorists traveling in the southbound traffic lane of the work being done on the highway, which was the proximate cause of the accident in question, particularly in view of the distance from which the work was being done and the crest of the hill, and taking into consideration the truck entrance near the crest of the hill on the east side of the road, which were all hazardous. Respondent’s employees are chargeable with, and should have acted accordingly to protect the traveling public.

It is, therefore, the finding of this Court that claimant has proven his case by a preponderance or greater weight of the evidence:

First: That he was free from contributory negligence after taking all the facts and circumstances into consideration;

Second: That it was the negligence of respondent’s - employees in creating the condition, which caused the accident, and it was respondent’s negligence, which was the proximate cause of the accident resulting in injuries to claimant, William Mathis, and damages to the Iowa National Mutual Insurance Company.

Inasmuch as there are two claimants, William Mathis for personal injuries, including loss of earnings and the deductible portion of his insurance policy, and the Iowa National Mutual Insurance Company for its subrogation claim, awards are, therefore, made as follows:

William Mathis, the sum of $2,000.00;

Iowa National Mutual Insurance Company, the sum of $2,433.00, which takes into consideration the amount paid to claimant, William Mathis, less depreciation, salvage, towing and storage charges.

Dissenting Opinion

Wham, J.

I respectfully dissent from the majority. I believe that the facts contained, in the record of this case fail to establish that claimant was in the exercise of due care for his own safety, and that the proximate cause of the occurrence was the alleged negligence of respondent.

The fact that there were no signs indicating the presence of a State employee working on the highway did not alleviate the necessity for claimant to keep a proper lookout down the highway ahead as he approached and proceeded over the crest of the hill. Had he done so, he would have seen the workman present on the highway in sufficient time to have signaled a warning with his horn, and reduced his speed in a manner that would not have thrown him onto the wrong side of the road and into the truck approaching from the opposite direction.

Although there was some discrepancy in the record regarding the distance from the crest of the hill to the place where the maintenance man was standing, the distance at which a man could be seen was definitely established to be 425 feet. Even allowing for more than normal reaction time, I believe that a driver in the exercise of reasonable care could have kept his automobile under control and on its own side of the road, and avoided striking both the approaching truck and the maintenance man.

The presence of the maintenance man on the highway created no different condition than would have been created by either a slow moving vehicle or a pedestrian lawfully upon the highway at that point. Claimant would have applied his brakes in precisely the same manner, regardless of what confronted him, as he came over the crest of the hill, and the same result would have occurred. It is, therefore, difficult for me to arrive at the conclusion that the lack of warning signs proximately caused the occurrence in question.

I feel that claimant himself was negligent in looking to the left and away from the direction of travel, while approaching the crest of the hill without reducing the speed of his automobile so as to compensate for the time involved in looking away from the direction in which he was proceeding. He should have anticipated the possibility of something over the crest of the hill, which would have been visible to him in time to avoid striking it had he continued to look ahead.

It is this that accounts for his failure to see the maintenance man until it was too late, and, therefore, at the very least, proximately contributed to the occurrence, which resulted in his own injury.

' Nor can claimant rely upon the sudden emergency doctrine. As was stated in Sullivan vs. Heyer, 300 Ill. App. 599, “One cannot create an untoward situation or emergency by his own action, and then by reason of such situation so created be relieved from such responsibility as the law requires of a person acting under normal conditions. ” In Dee vs. City of Peru, 343 Ill. 36 at 44, the court stated: “The law does not afford to one, who so exposes himself to danger, the privilege of recovering damages for an injury arising from his actions, which injury might have been avoided by the use of reasonable care for his own safety.”

For the above reasons, I believe that the claim should be denied.


source: Caselaw Access Project

author: Wham, J.

license: Public Domain

text:
    (No. 4804
    New Hampshire Fire Insurance Company, A Corporation; and Granite State Fire Insurance Company, A Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

      Arrington and Heady, Attorneys for Claimants.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

Claimants in this ease seek reimbursement for overpayment of 1952 taxes to the State of Illinois. As in the case of the Calvert Fire Insurance Company, Claimant, vs. State of Illinois, Respondent, No. 4805, in which we granted an award as of this date, no novel questions of law are involved, nor is there a dispute on the facts. Respondent has acknowledged the validity of the claims involved in this case. The Commissioner, who heard the case, has recommended the allowance of the claims, and we hereby adopt as our opinion in this case the following report of the Commissioner:

“Claimant, New Hampshire Fire Insurance Company, A Corporation, by Arrington and Healy, its attorneys, filed a complaint in the Court of Claims on January 27, 1958, which consists of Two Counts. Count I is in the name of the New Hampshire Fire Insurance Company, A Corporation, and Count II is in the name of The Granite State Fire Insurance Company, A Corporation.
In the New Hampshire Fire Insurance Company case claimant alleges that during the year 1952 it received from the sale of fire insurance in the State of Illinois net taxable premiums, taxable under the provisions of the Illinois Insurance Code (Chap. 73, Sec. 409(1), Par. 1021(1), Ill. Rev. Stats., 1951), in the amount of $733,194.87, as set forth in its 1952 privilege tax statement filed with the Director of Insurance of the State of Illinois, a copy of which statement was attached to said complaint and marked exhibit A.
Said taxable premiums, when assessed at the applicable premium tax rate of 2%, produced a tax of $14,663.90 before allowance for deductions authorized by Sec. 409(2) of the Illinois Insurance Code, (Chap. 73, Par. 1021(2), Ill. Rev. Stats., 1951), and pursuant to said statute claimant claimed and allowed credit for deductions, representing amounts paid by claimant for the benefit of organized fire departments in cities, villages, incorporated towns and fire protection districts of the State of Illinois.
$780.14 was paid by claimant’s Cook County Manager’s Office, and $2,101.47 was paid through the Home Office of claimant, as set forth in line 5 of exhibit A, making a total of $2,881.61. Claimant deducted said sum of $2,881.61 from its tax in the amount of $14,663.90, and paid the Director of Insurance of the State of Illinois the resultant sum of $11,782.29 as and for its 1952 premium tax for the privilege of doing business in the State of Illinois. (A photostatic copy is attached, and marked exhibit C.)
During the year of 1952, claimant paid to the City of Chicago 2% of its gross receipts of premiums received for fire insurance upon property situated within the municipality during the said year as tax for the benefit of the Chicago Fire Department, pursuant to Art. 38, Sec. 1 of the Cities and Villages Act, (Chap. 24, Par. 38-1, Ill. Rev. Stats., 1951, and Chap. 131-2 of the Municipal Code of Chicago, said payments amounting to $2,728.91. (Photostatic copy of said receipt is marked and attached to said complaint as exhibit D.)
Claimant inadvertently failed to include said sum in the entry on line 5 of the aforesaid tax statement, (exhibit No. 1), or otherwise to deduct such payment from its 1952 privilege tax.
Pursuant to the aforementioned provisions of Sec. 409(2) of the Illinois Insurance Code (Chap. 73, Par. 1021(2), Ill. Rev. Stats., 1951), claimant is entitled to a deduction from its premium privilege tax for all sums paid to municipalities for fire department taxes, and, therefore, is entitled to an additional deduction in the amount of $2,728.91 from its premium privilege tax (in addition to the amounts set forth in paragraph 3 hereof), totaling $2,881.61.
Claimant alleges that there is no provision under the laws of the State of Illinois for reimbursement for the foregoing overpayment of its 1952 premium privilege tax in the aforesaid amount of $2,728.91, except through recourse in the Court of Claims.
Claimant conferred with the Director of Insurance of the State of Illinois and its authorized representatives, and has presented to said persons the facts alleged. The Director of Insurance and his duly authorized representatives have confirmed that they are without legal authority to refund the foregoing payments, and have stated that recovery of the same can be solicited only through the Court of Claims in a formal complaint. Claimant stated that this cause of action was previously presented to the Court of Claims under Case No. 4629, and that on November 9, 1954 the Court of Claims denied recovery.
Claimant further states that it is entitled to" recover herein by reason of the amendments to Sections 8 and 22 of “An Act to create the Court of Claims”. The Act, entitled “Senate Bill No. 691”, and approved by the 70th General Assembly on July 11, 1957, provides in subsection F of Section 8:
‘All claims for recovery of overpayment of premium taxes or fees or other taxes by insurance companies made to the State resulting from failure to claim credit allowable for any payment made to any political subdivision or instrumentality thereof. Any claim in this category, which arose after July 15, 1945 and prior to the effective date of this amendatory Act, may be prosecuted as if it arose on the effective date of this amendatory Act without regard to whether or not such claim has previously been presented or determined.’
Therefore, the New Hampshire Fire Insurance Company, A Corporation, requested judgment against respondent, the State of Illinois, in the amount of $2,728.91.
Count II is the claim of the Granite State Fire Insurance Company, A Corporation, by Arrington and Healy, its attorneys, who allege that it is a duly organized insurance company, licensed to transact fire insurance business in the State of Illinois; and, that during the year of 1952 claimant received from the sale of fire insurance in the State of Illinois net taxable premiums, taxable under the provisions of the Illinois Insurance Code, in the amount of $106,313.38, as set forth in its 1952 privilege tax statement filed with the Director of Insurance of the State of Illinois, a copy of which was attached to the complaint and marked exhibit B.
Said net taxable premiums, when assessed at the applicable premium tax rate of 2%, produced a tax of $2,126.27 before the allowance of deductions authorized by Sec. 409(2) of the Illinois Insurance Code (Chap. 72, Par. 1021(2), Ill. Rev. Stats., 1951). Pursuant to said statutory section, claimant claimed and was allowed credit deductions, representing amounts paid by claimant for the benefit of organized fire departments in cities, villages, incorporated towns and fire protection districts of the State of Illinois, in said amount, totaling $464.69. (See line 5 of exhibit B.)
Claimant deducted said sum of $464.69 from its tax in the amount of $2,126.27, and paid to the Director of Insurance of the State of Illinois the resultant sum of $1,661.58 as and for the 1952 premium tax privilege of doing business in this State. (Photostatic copy of check attached, and marked exhibit E.)
During the year of 1952, claimant paid the City of Chicago 2% of its gross receipts of premiums received from fire insurance on property situated in that municipality. Said tax was for the benefit of the Chicago Fire Department, pursuant to Art. 38, Sec. 1 of the Cities and Villages Act, said payment amounting to $743.11. (Photostatic copy of receipt of payment is attached and marked exhibit F.) Said claimant inadvertently failed to include said sum in the entry on line 5 of the aforesaid statement (exhibit B), or otherwise to deduct such payment from its 1952 privilege tax.
Pursuant to the aforesaid provisions of Sec. 409(2) of the Illinois Insurance Code, claimant is entitled to take deductions from its premium privilege tax for all the sums paid to municipalities for fire department taxes, and is, therefore, entitled to an additional deduction in the amount of $743.11.
Claimant further states that it is entitled to recovery herein by reason of the amendments to Sections 8 and 22 of “An Act creating the Court of Claims”. The Act, entitled “Senate Bill No. 691”, approved by the 70th General Assembly, was cited above in the New Hampshire Fire Insurance Company case.
Claimant, therefore, makes claim against the State of Illinois in the amount of $743.11.
Your Commissioner set this case for hearing on the 20th day of November, 1958 at 160 North LaSalle Street, Chicago, Illinois, and respondent, State of Illinois, in a stipulation, which was filed with your Commissioner, agreed that, if Mr. H. C. Ferry, Secretary of the New Hampshire Fire Insurance Company, was present, he would testify that during the year of 1952 claimant received from the sale of fire insurance in the State of Illinois net taxable premiums in the amount of $733,194.87, as set forth in the 1952 privilege tax statement filed with the Director of Insurance of the State of Illinois, a copy of which was attached to the stipulation and marked exhibit A; and, that said net taxable premiums, when assessed at the applicable premium tax rate of 2%, produced a tax of $14,663.90 before allowance of deductions in accordance with the Illinois Insurance Code. Therefore, the amount due the New Hampshire Fire Insurance Company, A Corporation, would be $780.14 paid by the Cook County Manager’s Office, and $2,101.47 paid by the Home Office, which makes a total of $2,881.61.
Your Commissioner has examined all of the exhibits and the stipulation, and recommends that an award be made in the amount of $2,881.61 to the New Hampshire Fire Insurance Company, and $743.11 to the Granite State Fire Insurance Company, A Corporation.”

It is, therefore, ordered that an award be made to the New Hampshire Fire Insurance Company, A Corporation, in the amount of $2,881.61, and an award be made to the Granite State Fire Insurance Company, A Corporation, in the amount of $743.11.


text:
    (No. 4805
    Calvert Fire Insurance Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

    Arrington and Healy, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

This case involves a suit brought by claimant to recover reimbursement for overpayment of taxes to the State of Illinois during the years of 1950, 1951, 1952 and 1953. No novel questions of law are involved, since we have passed on this same question in the cases of the Columbia Fire Insurance Company, A Corporation, Claimant, vs. State of Illinois, Respondent, No. 4787, and American Indemnity Company, A Corporation, Claimant, vs. State of Illinois, Respondent, No. 4834. There are no disputes of facts in this case, and respondent has acknowledged the validity of the claim. The Commissioner recommended that the award be allowed, and we hereby adopt his report as our opinion in the case:

“The Calvert Fire Insurance Company, A Corporation, by Arrington and Healy, its attorneys, filed its complaint against the State of Illinois with the Court of Claims on January 27, 1958 contending that claimant, Calvert Fire Insurance Company, A Corporation, incorporated under the laws of the State of Pennsylvania, was licensed to transact business in the State of Illinois.
During the year of 1950, claimant reported that it received from the sales of fire insurance in the State of Illinois net taxable premiums, taxable under the provisions of the statutes of the State of Illinois, in the amount of $210,768.17, as set forth in exhibit A attached to the complaint. A tax payment was remitted to the Department of Insurance in the amount of $1,053.84, exhibit B attached to said complaint. During the year of 1951, claimant reported that it received from the sales of fire insurance in the State of Illinois net taxable premiums, taxable under the provisions of the State of Illinois, in the amount of $226,778.81, and that a tax payment was remitted to the Department of Insurance of the State of Illinois in the amount of $1,133.89, as exhibited by copy of draft marked exhibit D.
During 1952, claimant reported it received from the sales of fire insurance in the State of Illinois net taxable premiums, taxable under the provisions of the statutes of the State of Illinois, in the amount of $268,-177.72, as set forth in exhibit G, and that a tax payment was remitted to the Department of Insurance of the State of Illinois in the amount of $1,340.89, exhibit H. Claimant alleges that the payments on its part, referred to in paragraphs 2, 3, 4 and 5, were made because of an error in reporting the premiums, which were subject to the Fire Marshal tax. The net taxable premiums, as shown on exhibits of premiums for the purpose of the Fire Marshal premium tax for the years mentioned above, included theft, comprehensive and miscellaneous premiums, and were not purely auto fire premiums or premiums subject to the fire marshal tax. When National Automobile Underwriters Association’s percentages are applied, and the fire portions of the premium are extracted and used as a basis for determining the tax to be paid, the results should have been as follows:
Year Premiums Reported Fire Prem. Detemrined By Applying N.A.U.A.% Tax Remitted Recomputation of Tax OverPayment
1950 _________ ..$ 210,768.17 $ 67,972.48 $1,053.84 $ 339.86 $ 713.98
1951 _________ _ 226,778.81 74,009.39 1,133.89 370.05 763.84
1952 _________ _ 327,876.81 87,796.94 1,639.38 438.98 1,200.40
1953 _________ . 268,177.72 73,249.02 1,340.89 366.25 974.64
Total______ ..$ 1,033,601.51 $303,027.83 $5,168.00 $1,515.14 $3,652.86
Claimant alleges that no provision under the laws of the State of Illinois provides for reimbursement of the foregoing overpayments of 1950, 1951, 1952 and 1953 Fire Marshal premium taxes in the amount of $3,652.86 except through recourse in the Court of Claims. Therefore, its claim was filed in this Court. Claimant further states that it is entitled to recover herein by reason of the amendments to Sections 8 and 22 of “An Act to create the Court of Claims”. This Act, entitled “Senate Bill No. 691,” and approved by the 70th General Assembly on July 11, 1957, provides in subsection F of Section 8:
‘All claims for recovery of overpayment of premium taxes or fees or other taxes by insurance companies made to the State resulting from failure to claim credit allowable for any payment made to any political subdivision or instrumentality thereof. Any claim in this category, which arose after July 15, 1945 and prior to the effective date of this amendatory Act, may be prosecuted as if it arose on the effective date of this amendatory Act without regard to whether or not such claim has previously been presented or determined.’
Your Commissioner set this case for hearing on November 20, 1958 at 160 North LaSalle Street, Chicago, Illinois, and a stipulation was presented to your Commissioner as claimant's exhibit A, which in substance admits the liability of the following overpayments: 1950 — $713.98; 1951— $763.84; 1952 — $1,200.40; and, 1953 — $974.64, making a total for the four years of $3,652.86.
Your Commissioner has examined the stipulation and all of the exhibits.
Your Commissioner, therefore, recommends that an award be made to the Calvert Fire Insurance Company, A Corporation, in the amount of $3,652.86.”

It is, therefore, ordered that an award be made to claimant, Calvert Fire Insurance Company, A Corporation, in the amount of $3,652.86.


text:
    (No. 4809
    Market Mens Mutual Insurance Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

    Nicholas S. Kiefer, Attorney for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant in this case seeks reimbursement for overpayment of 1955 and 1956 taxes to the State of Illinois. As in the case of the Calvert Fire Insurance Company, Claimant, vs. State of Illinois, Respondent, No. .4805, in which we granted an award this date, no novel questions of law are involved, nor is there a. dispute on the facts. Respondent has acknowledged the validity of the claim involved in this case. The Commissioner, who heard the case, has recommended the allowance of the claim, and we hereby adopt as our opinion in this case the following report of the Commissioner:

“The above entitled cause was set for hearing on two occasions. The parties to said cause did not introduce any evidence, but entered into a stipulation of facts, said stipulation of facts being filed in the Court of Claims on September 11, 1958.
According to the stipulation, claimant is an insurance company incorporated under the laws of the State of Wisconsin. It has been admitted to transact the business of fire insurance in Illinois. It appears that in 1955 claimant paid a gross annual privilege tax of $2,555.01. In 1956 the gross annual privilege tax of said claimant was $2,528.24. In 1955 claimant paid to the City of Chicago the sum of $970.89 in fire department tax, and failed to claim said amount as a deduction from its gross annual privilege tax. In August of 1955 claimant paid to the City of Chicago the sum of $858.06 in fire department taxes, but failed to claim a deduction of said amount from its 1956 gross annual privilege tax levied by respondent.
Claimant maintains it is entitled to deduct from the gross amount of premium taxes due to the State of Illinois in any year the amounts paid in the previous year to Illinois municipalities for support of their fire departments, and bases its claim upon Sec. 409 of the Illinois Insurance Code (Ill. Rev. Stats., 1957, Chap. 73, Sec. 1021), and Sec. 8F of the Court of Claims Act, (Ill. Rev. Stats., 1957, Chap. 37), which provides that, having failed to claim in the immediately succeeding year a deduction for taxes paid to a municipality for support of its fire department, claimant is entitled to recover in the Court of Claims from respondent the overpayment of premium tax.
An examination of the aforesaid provisions of the Illinois Insurance Code and Sec. 8F of the Court of Claims Act clearly indicates that claimant is entitled to recover the sum of $970.89 for the overpayment of its premium tax for the year 1955, and the sum of $858.06 for the year 1956. Therefore, this Commissioner recommends that the Court allow the claim of claimant in the aforesaid amounts.”

It is, therefore, ordered that an award he made to claimant, Market Mens Mutual Insurance Company, A Corporation, in the' amount of $1,828.95.


author: Fearer, J.

text:
    (No. 4834
    American Indemnity Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

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

A complaint was filed in this cause on July 29, 3 958 by the American Indemnity Company, A Corporation.

The record consists of the following:

1. Complaint

2. Stipulation in lieu of evidence

3. Statement, brief and argument of claimant

4. Commissioner’s Report.

The Commissioner adopted the stipulation, and recommended an award in the amount of $611.81.

Claimant, A Texas Corporation, was authorized and licensed to transact and conduct fire insurance business in the State of Illinois. During the year of 1956 it received from the sale of fire insurance in the State net premiums, taxable under the provisions of the Illinois Insurance Code (Chap. 78, Sec. 409, Par. 1021, 1957 Ill. Rev. Stats.), in the amount of $1,236,148.89, as set forth in its 1956 privilege tax statement filed with the Director of Insurance, a copy of which is attached to the complaint, marked exhibit A, and made a part thereof.

It is set forth in the complaint that net taxable premiums, when assessed at the applicable premium tax rate of 3.85%, produced a tax of $47,591.74 before allowance for deductions authorized by Sec. 409 of the Illinois Insurance Code (Chap. 73, Par. 1021 (2), 1957 Ill. Rev. Stats.). Claimant claimed and was allowed credit for deductions representing amounts paid by claimant to cities, villages and incorporated towns and fire protec-« tion districts of the State of Illinois, for the benefit of organized fire departments, which totalled $398.38.

Claimant deducted the sum from said tax in the amount of $47,591.74, and paid to the Director of Insurance the sum of $47,193.36 for its 1956 premium tax for the privilege of doing business in the State of Illinois. (This was represented by a photostatic copy of a check,, marked exhibit B, and by reference made a part of said, complaint.)

It is further alleged that in 1956 claimant paid to various incorporated cities, towns and villages of the-State of Illinois 3.85% of its gross receipts of premiums, received for fire insurance upon property situated within the respective municipalities during said year as taxes-, for the benefit of the respective organized fire-departments pursuant to the provisions of Art. 38, Sec. 1 of the Cities and Villages Act (Chap. 24, Par. 38-1, Ill. Rev. Stats., 1957). Said payments were as follows:

City of Chicago ___________________________________________________$ 545.36

Village of Wilmette ___________________________________________ 2.73

City of East St. Louis ________________________________________ 25.53

Town of Cicero ______________________________________________ 13.18

City of Decatur ___________________________________________________ 25.01

Total ____________________________________________________________$ 611.81

Copies of the receipts are attached to the complaint, by reference made a part thereof, and marked exhibits C, D, E, F and G-.

It is alleged that claimant inadvertently failed to-include said sum of $611.81 as a credit toward the payment of the said tax in the amount of $47,591.74, or to otherwise deduct such payments from its 1956 privilege-tax aforesaid.

Claimant, under the laws of this State, is entitled to a deduction from its premium privilege tax for all sums, paid to municipalities for fire department taxes, and is, therefore, entitled to an additional deduction in the-amount of $611.81 from its 1956 premium privilege tax in addition to the amount of $398.38 set forth in its complaint.

There would be no authority for the Director of Insurance to reimburse claimant for the overpayment, and the only way that this overpayment can be recovered is in this Court by reason of certain amendments to Sections 8 and 22 of “An Act to create the Court of Claims”. This Act, entitled “Senate Bill No. 891”, and approved by the 70th General Assembly on July 11, 1957, provides in subsection F of Section 8:

“All claims for recovery of overpayment of premium taxes or fees or other taxes by insurance companies made to the State resulting from failure to claim credit allowable for any payment made to any political subdivision or instrumentality thereof. Any claim in this category, which arose after July 15, 1945, and prior to the effective date of this amendatory Act, may be presented as if it arose on the effective date of this amendatory Act without regard to whether or not such claim has previously been presented or determined.”

Inasmuch as there has been an overpayment, and claimant would have been entitled to a further credit of $611.81; and, further, in view of the Act of the General Assembly passed on July 11, 1957, an award is, therefore, made to claimant in the amount of $611.81.


text:
    (No. 4849
    Richard B. Austin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

    Richard B. Austin, Claimant, pro se.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Richard B. Austin, Judge of the Superior Court of Cook County, has filed his complaint in this cause asking an award in the amount of $3,791.62 to reimburse him for monies advanced from his own funds to compensate Vonnie Donnelly for services rendered as his official court reporter from March 1, 1958 to October 1, 1958. This case was heard in Chicago on January 21, 1959 before Commissioner Herbert G. Immenhausen. No defense was made by the State of Illinois, and the Assistant Attorney General representing respondent admitted in open court that the State was indebted to claimant in the amount asked. The Commissioner, after hearing the evidence, recommended that an award be made in the amount claimed.

We have examined the Commissioner’s Report, as well as the records submitted in the cause, and do hereby adopt the report in the following words and figures:

“Richard B. Austin filed his complaint on December 16, 1958 alleging that he was a duly elected Judge of the Superior Court of Cook County since December 1, 1953;
That on November 20, 1957 he appointed Vonnie Donnelly as his official court reporter, and said appointment was approved by the Executive Committee of the Superior Court of Cook County;
That he forwarded the notice of appointment to Elbert S. Smith, Auditor of Public Accounts, receipt of which was acknowledged on November 26, 1957;
That on February 21, 1958, he forwarded to the said Elbert S. Smith a signed official oath of office and loyalty oath of the said Vonnie Donnelly, receipt of which was acknowledged by the said Elbert S. Smith;
That the said Elbert S. Smith, Auditor of Public Accounts, advised claimant that there were insufficient funds appropriated by the Legislature to place the said Vonnie Donnelly on the State payroll, and that he would be unable to do so until such time as a vacancy occurred;
That the said Vonnie Donnelly assumed her office on March 1, 1958, and faithfully, diligently and competently performed the duties of an official court reporter of the State of Illinois from that date to the present time;
That on October I, 1958 the said Elbert S. Smith advised claimant that a vacancy had occurred, and since that time the said Vonnie Donnelly has been receiving from the State of Illinois the compensation as provided by statute; but, during the period of March 1, 1958 to October 1, 1958, Richard B. Austin, claimant herein, advanced from his own funds to the said Vonnie Donnelly her statutory compensation of $3,791.62.
The State of Illinois did not file an answer, and the case was set for hearing before the undersigned on January 21, 1959 at 160 North LaSalle Street, Chicago, Illinois. Richard B. Austin was sworn, and testified that he was a Judge of the Superior Court of Cook County;
That on November 20, 1957 he appointed the said Vonnie Donnelly, who was skilled in verbatim reporting, and who had been a bonafide resident of the State of Illinois for more than one year, as his official court reporter;
That said appointment was approved by the Executive Committee of the Superior Court pursuant to Par. 163a, Chap. 37, Ill. Rev. Stats., 1957; and that he forwarded that appointment to the said Elbert S. Smith, Auditor of Public Accounts, and received an acknowledgment on November 26, 1957;
That on February 21, 1958, he forwarded to the said Elbert S. Smith, the duly signed official oath of office and loyalty oath executed by the said Vonnie Donnelly, receipt of which was acknowledged by the said Elbert S. Smith;
That the said Elbert S. Smith, Auditor of Public Accounts, advised him there were insufficient funds appropriated by the last Legislature to place the said Vonnie Donnelly on the State payroll, and that he would be unable to do so until such time as a vacancy occurred;
That the said Vonnie Donnelly assumed her office on March 1, 1958, and has faithfully, diligently and competently performed the duties of an official court reporter of the State of Illinois from that date to the present time.
On October I, 1958, State Auditor Elbert S. Smith advised Richard B. Austin that a vacancy had occurred, and since that time the said Vonnie Donnelly has been receiving from the State of Illinois her compensation as provided in Sec. 163b, Chap. 37, Ill. Rev. Stats., 1957;
That during the period from March 1, 1958 to October 1, 1958 Richard B. Austin advanced each month from his own funds to the said Vonnie Donnelly her statutory compensation of $541.66 for a total of $3,791.62.
Thereupon, exhibit No. 1 was identified. It consisted of cancelled checks issued by Richard B. Austin to the said Vonnie Donnelly, and was introduced in evidence.
Then, the said Vonnie Donnelly testified that she was skilled in verbatim court reporting, and that on March 1, 1958 assumed her office as official'court reporter for Richard B. Austin. She stated in length her duties, the number of cases she took as such court reporter, and testified that from March 1, 1958 to October 1, 1958 she received her compensation from Richard B. Austin each month in the amount of $541.66, making a total of $3,791.62.
The Attorney General presented a stipulation, signed by Richard B. Austin and Latham Castle, stating that Richard B. Austin was a duly elected Judge of the Superior Court of Cook County since December 1, 1953; that on November 20, 1957, he appointed the said Vonnie Donnelly, who was a skilled verbatim reporter, and who had been a bonafide resident of the State of Illinois for more than one year, as his official court reporter, and the said appointment was approved by the Executive Committee of the Superior Court of Cook County pursuant to Par. 163a, Chap. 37, Ill. Rev. Stats., 1957; that the said Elbert S. Smith, Auditor of Public Accounts, advised claimant there were insufficient funds appropriated by the Legislature to place the said Vonnie Donnelly on the State payroll; that the said Vonnie Donnelly assumed her office on March 1, 1958, and faithfully, diligently and competently performed the official duties of court reporter of the State of Illinois from that date to the present.
Your Commissioner has examined the statute, and finds that Chap. 37, Par. 163a, provides for the appointment of court reporters, as follows:
‘Each of the several judges of the Circuit, Superior, City and Town courts in this State is authorized to appoint one official shorthand reporter, who shall be skilled in verbatim reporting, and who shall have been a bonafide resident of the State of Illinois for one year, and whose duties shall be as hereinafter specified. *******
Par. 163b provides for the duties and compensation:
‘The reporter shall take full stenographic notes of the evidence in trials before the court for which he is appointed, and shall furnish one transcript of them, if requested by either party to the suit, or by his attorney, or by the judge of the court, to the person requesting it. When not engaged in the taking or transcribing of stenographic notes of evidence, the reporter shall perform secretarial services and such other duties in connection with the court as the judge appointing him shall direct. ****** *j*he salaries of the reporters above . named, provided to be paid out of the State Treasury, shall be paid to them monthly on the warrant of the Auditor of Public Accounts, out of any money in the State Treasury not otherwise appropriated. * Therefore, it appears from the evidence that claimant has proven his case by a preponderance of the evidence, and it is my recommendation that an award be made in the amount of $3,791.62 to Richard B. Austin.”

An award is, therefore, made to claimant in the amount of $3,791.62.


author: Tolsobt, C. J.

text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1959.

    John W. Preihs, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolsobt, C. J.

On April 23, 1959, claimant, Elva Jennings Penwell, filed a supplemental petition for reimbursement for monies expended by her for medical services and expenses from July 1, 1958 to April 1, 1959.

On May 2, 1959, claimant and respondent filed a joint motion for leave to waive the filing of briefs and arguments, and alleged that claimant’s receipts for payment of medical bills and services constituted the entire evidence in the case.

Claimant was injured in an accident, while employed at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The accident occurred on February 2, 1936, and the original award is reported in 11 C.C.R. 365. This Court retained jurisdiction of the case, and successive awards have been made from time to time.

The petition before the Court at this time again discloses that claimant is permanently disabled, and is entitled to an additional award.

Original receipts, received in evidence, establish the following claim:

Item A: Nursing ______________________________$ 1,138.65

Room and Board for Nurses _______ 477.75

Item B: Drugs and Supplies __________________ 102.48

Item C: Physician _________________________________ 1,175.39

Item D: Transportation ______________________________ 25.00

Total _________________________________________$ 2,919.27

An award is, therefore, made to claimant for monies expended from July 1,1958 to April 1,1959 in the amount of $2,919.27.

The Court reserves jurisdiction for further determination of claimant’s need for additional medical care.


text:
    (No. 4580
    Bosley Wrecking Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1959.
    Cherry and Morse, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tier-nan, Assistant Attorney General, for Respondent.
   Wham, J.

This is a suit on a contract entered into between claimant, Bosley Wrecking Company, An Illinois Corporation, and the State of Illinois, wherein claimant agreed to wreck and' remove 66 buildings lying in the path of a proposed State highway for the stated consideration' of $9,442.00.

Claimant contends that it was greatly delayed in fulfilling the terms of its contract by reason of the buildings not being made available to it within the time set forth in the contract, and that by reason thereof it sustained damages in increased labor costs and additional expenses required because of the delay. Claimant’s Count I of the amended complaint prays damages in the amount of $5,119.30, plus 10% of the contract withheld from it by the State of Illinois.

It is respondent’s position that the State of Illinois is not responsible for the delay and resulting increased costs and expenses.

The contract further provided that “all of the build ings for this contract are to be vacated on or before November 1, 1950”. The contract required claimant to complete the wrecking and removal of the buildings not later than March 24, 1951, which was 70 days from the date of the execution of the contract.

The evidence established that claimant commenced work within 10 days after the execution of the contract, but work had to be suspended in view of the fact that only 35 of the 66 buildings to *be removed had been vacated within the time specified in the contract. Twenty-nine of the buildings were not made available until after June 1. These buildings were available for wrecking at various times between June 1, 1951 and June 1, 1952. Two of the buildings were not available for wrecking by claimant until after June 1, 1952.

This delay was in no way caused by claimant. It was the delay in making these buildings available to claimant, which caused the increase in labor cost and other expenses incurred by claimant in completing the contract.

Respondent contends that, from the time the contract was signed, it was apparent that the buildings were not vacated, and, therefore, the provisions of the contract stating that they would be vacated by November 1, 1950 was waived by claimant, who had knowledge that they were not vacated. Respondent relies upon Art. IV of the proposal in support of this contention. It reads as follows:

“The undersigned further declares that he has carefully examined the proposal, plans, specifications, form of the contract and contract bond and special provisions, if any, and that he has inspected in detail the site of the proposed work, and that he has familiarized himself with all the local conditions affecting the contract, and the detailed requirements of construction, and understands that in making this proposal he waives all right to plead any misunderstanding regarding the same.”

This contention is not well taken in view of the fact that, although it might have been apparent to claimant at the time of signing the contract that people were still living in the buildings, it had a right to presume that the ground work had been laid for moving the people within the period of time required by the contract for the wrecking of the buildings.

Respondent next contends that it had a separate contract with the City of Chicago, and places the responsibility for vacating the ($3 buildings on the City of Chicago acting as an independent contractor. This contract was admitted into evidence by the Commissioner with the understanding that it be connected up with claimant. There is no evidence in the record that claimant had any knowledge of the existence of this contract, and, therefore, could not be bound to take notice that someone other than the State of Illinois was responsible for procuring the vacation of the buildings.

We believe that this case comes within the rule announced in Stramberg Brothers Co. vs. State of Illinois, 8 C.C.R. 87 (1937), where it is stated:

“The State is liable for the actual damage sustained by a contractor arising from unreasonable delays caused solely by the State and not through the fault of the contractor, nor attributable to his failure in protecting himself from the effects of delays, which might reasonably have been foreseen.”

We believe that claimant was unreasonably delayed by respondent’s failure to make available the buildings for demolition; and that claimant was without fault in the matter, and complied with its part of the contract.

With respect to the question of damages resulting from respondent’s breach of contract, claimant contends that it is entitled to the following:

For increased labor costs, the sum of $2,741.80.

For additional costs to remove fly dump material, the sum of $847.00.

For increased insurance costs, the sum of $559.30.

For monies withheld, being 10% of contract, or the sum of $944.00, making a total of $5,119.10.

The evidence offered by claimant established that the foregoing damages were the result of the unreasonable delay in vacating the 29 buildings wrecked by claimant subsequent to June 1, 1951. The evidence established that it expended 13,276 man hours for the period of June 1, 1951 to June 1, 1952 at an increased labor cost of 15^ per man hour, due to the fact that claimant was required to enter into a subsequent labor contract at an increased rate over that in effect at the time of the bidding on the demolition project. The evidence further established that claimant expended an additional 248 man hours subsequent to June 1, 1952 at a total increased labor cost of 35^* per man hour, making a total increase in necessary labor cost of. $2,741.80. Because of the unnecessary delay in making the buildings available for wrecking, waste material accumulated from persons dumping debris into the buildings, which claimant was required to remove under the terms and conditions of the executed contract. The evidence established that the cost of labor in removing this material was greatly increased, because of the unreasonable delay, over what it would have been had the buildings been made available on schedule under the terms of the contract. The evidence established that the increased cost of removing this material was $874.00.

The Workmen’s Compensation, Public Liability and Property Damage Insurance premiums, which were based upon the total wages paid to the employees at the rate of 17% of the payroll, were likewise increased by reason of the delay and resulting higher labor costs. The evidence established that this extra cost to claimant was $559.30.

There is no dispute that claimant is entitled to $944.00, being an amount of 10% of the total contract withheld by respondent.

We believe that claimant is entitled to an award in the amount of $5,119.10. It is, therefore, ordered that claimant’s claim in that amount, be allowed.


text:
    (No. 4786
    Sue Mammen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1959.

    Costigan, Wollrab and Yoder, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Sue Mammen, brings this action for damages growing out of injuries to her person, which were sustained on December 26, 1956 when the automobile driven by her husband, in which she was a passenger, collided with a barricade marking the end of the pavement on old Route No. 66 southwest of Gardner, Illinois, as they were enroute to their home in Danvers, Illinois, returning from, a Christmas visit with their son and family in Elmhurst, Illinois.

She sustained facial injuries and a broken kneecap necessitating the removal thereof by surgery, and claims damages in the amount of $7,500.00.

Claimant contends that respondent was negligent in failing to sufficiently warn the traveling public of the barricade’s existence, and the fact that the road came to a dead end.

Respondent’s position is that reasonable warning was given to the public of such condition, that claimant and her husband should have seen the barricade, and that the evidence failed to establish respondent guilty of any act or omission, which proximately caused the injuries to claimant.

The record reflects very little conflict in the evidence. Basically, the facts are these: Claimant’s husband, Ernest William Mammen, 75 years of age, was driving a 1946 Mercury automobile in which his wife, claimant, Sue Mammen, 73 years of age, was riding as a passenger in the front seat at the time of the accident in question. They had been to Elmhurst to visit their son, Dr. William Mammen, for Christmas, and were returning to their home in Danvers, Illinois.

They had traveled from Elmhurst to Gardner, Illinois on the State highway referred to by the parties as “Old 66”. This route formerly ran south and west of Gardner, Illinois. However, in the fall of 1956 that portion of “Old 66” south and west of Gardner was closed, and a new four-lane Route No. 66 was opened.

North of Gardner this road, referred to as “Old 66” through Braidwood and Alternate Route No. 66 through Joliet, could be used as well as the new four-lane highway. South and west of Gardner only the new four-lane Route No. 66 could be used.

The State had closed that portion of “Old 66” by removing part of the slab, and also erecting a barricade across the highway south and west of Gardner. The barricade extended from the east side of the shoulder on the east to the west side of the shoulder on the west. It consisted of 6 inch I-beams set in the ground at intervals of 12 feet 6 inches with a 12 inch convex steel plate fixed horizontally to the northerly side of the I-beam. The barricade was 63 feet long, 24 inches high, and was painted white.

At the southwest edge of Gardner there is access to the new U. S. No. 66 from the “Old 66” at a four-way stop sign. A short distance south thereof there is a “Y”, one branch leading to an overpass over the G. M. and O. E. E. going back to.the north toward Joliet, and the other branch being a continuation of old U. S. Eonte No. 66 south to the place where the barricade now marks the ending of the old route.

Claimant’s husband, after stopping at the four-way stop sign at the access road from “Old 66” to the new Route No. 66, proceeded on across the intersection, and made a left turn at the “Y” leading over the railroad tracks. After traveling a short distance, he realized that he was on the Alternate U. S. No. 66 heading back north. He then backed his automobile to the fork, and continued southerly on “Old Eonte 66”.

Approximately 50 feet from the “Y” there was a sign reading “No Outlet”. This sign was located approximately one-half to three-quarters of a mile north and west of the barricade. There was no sign indicating that the road was barricaded. The “No Outlet” sign was partially covered by snow.

The weather on that day was bright and clear, and snow covered the ground. As claimant and her husband approached the barricade between 40 and 45 miles an hour, they suddenly saw the barricade in front of them. •Claimant’s husband attempted to stop the vehicle, but was unable to do so, and crashed into the barricade. Claimant struck the windshield of the vehicle and numerous other parts thereof. She received facial cuts and a broken kneecap. The kneecap was subsequently removed in its entirety by surgery due to the shattering nature of the fracture. Claimant was taken to the Morris Hospital, and was later removed to the Elmhurst Hospital, so that her son, who was a physician, could take care of her. She was immobilized for six weeks in a metal splint, and was in the home of her son for seven weeks before she was released to go back to her home in Danvers. Claimant contends that, because of the injury to her knee, it has been impossible for her to do numerous household chores both inside and out, and she is unable to carry on the active life, which she lived prior to the accident.

Mr. Arthur Bozue, a witness offered on behalf of claimant, testified that he operated a service station at the intersection of Route No. 66 and the blacktop road on the outskirts of Gardner. He accompanied the ambulance driver to the scene of the accident, and gave first aid to claimant. He testified that the barricade in question was located 30 inches off of the pavement, and was painted solid white. He noted the “No Outlet” sign as they returned from the scene of the accident in the ambulance, and observed that the sign was not visible, because it had snow on the face of it. He further testified that, as they approached the scene of the accident in the ambulance, they had a great deal of difficulty seeing the barricade, due to the glare created by the sunshine upon the snow, and, in fact, the ambulance driver nearly struck the barricade before coming to a stop. He stated that there was some snow on the highway around the barricade, and that he saw skid marks of 25 or 30 feet made by the Mammen automobile immediately before it hit the barricade.

Mr. Kenneth Sandeno, the ambulance driver, offered as a witness on behalf of claimant, testified that he took Mrs. Mammen to the Morris Hospital. He also stated that he could not see the barricade until he was right on top of it; that this was due to the reflection of the sun upon the snow. He said there was some snow on the road, and that the unpaved ground in back of the barricade was covered with snow. He verified the fact that the barricade was painted white. He stated he could not read fhe “No Outlet” sign, because it was covered with snow.

Dr. William Mammen testified that he cared for his mother in conjunction with Dr. D. Gf. Michels. He testified that claimant had made a fairly normal recovery, and has full flexion of the knee; but she tires, has some weakness in the knee, and uses a cane by reason thereof. His services rendered • reasonably amount to $150.00; the hospital bill was $152.15; the ambulance service from Morris to Elmhurst was $40.00; and, Dr. Michels ’ charge for the operation in removing the kneecap was $300.00.

Respondent made some attempt to show that claimant’s husband, Mr. Mammen, told Mr. Arthur L. Dierstein, a District Traffic Engineer for the Department of Highways, State of Illinois, that he saw the “No Outlet” sign and slowed up, and that he was referring to a time immediately prior to the accident. Mr. Mammen admitted telling Mr. Dierstein that he had seen the “No Outlet” sign, but testified that he was referring to seeing it after the accident rather than before the accident, when it was pointed out to Mm by Mr. Bozue, as they came back from the scene of the accident. He also testified that he had traveled that route for many years before the construction of the new highway, and had no knowledge of the pavement’s removal, or of the existence of the barricade prior to the accident.

From all the evidence in this case, we find that respondent was negligent in failing to properly inform the motoring public of the barricade’s existence and the dead end of the road. Regardless of whether Mr. Manxmen saw the “No Outlet” sign or whether he did not, that sign was clearly inadequate as a warning that he would be confronted with a low barricade, which blended into the landscape, and could not be readily seen in time to avoid colliding with it. The evidence clearly reflects that no warning of any kind was given by respondent as to the existence of this barricade.

This situation comes within the purview of Bovey vs. State of Illinois, 22 C.C.R. 95, wherein we allowed a recovery based upon the insufficiency of the signs to warn the motoring public of a particularly dangerous condition. The rule there announced is that, although the State is not an insurer of the safety of persons in the lawful use of its highways, it is nevertheless under a duty to give warning by the erection of proper and adequate signs at a reasonable distance of a dangerous condition of which the State had notice either actual or constructive. We hold that, under the conditions involved in this case, a sign stating “No Outlet” is wholly insufficient to advise the motoring public of the barricade involved and the abrupt ending of a State highway. Respondent was negligent in failing to maintain adequate signs warning of this particular danger, which obviously was known ■ by it to exist long prior to the happening of this occurrence.

We further find that claimant and her husband were in the exercise of ordinary care for their own safety at the time of this occurrence, and that the negligence of respondent proximately caused claimant’s injuries.

As to the amount of damages, the Commissioner observed claimant, and recommended that she be awarded the sum of $5,000.00 for her injuries. Although it was necessary to remove the patella, the evidence fails to reflect any great limitation of a permanent nature resulting therefrom, and, therefore, we will adopt the Commissioner’s recommendation as to the amount of damages, since he had the opportunity of observing claimant personally.

An award is, therefore, made to claimant in the amount of $5,000.00.


author: Tolson, C. J.

text:
    (No. 4854
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1959.
    William A. Schuwerk, Attorney for Claimant.
    Grenville Beardsley, Attorney General; Roger Lapan, Assistant Attorney General, for Respondent.
   Tolson, C. J.

The County of Randolph has filed a claim seeking an award in accordance with the statutory provisions of Chap. 65, Pars. 37, 38 and 39, Ill. Rev. Stats., 1957.

The claim was heard by Commissioner Billy Jones, and his report, in the following words and figures, is hereby adopted by the Court:

“This case is a claim for filing fees, service fees, and State’s Attorney’s fees in certain habeas corpus cases filed by inmates of the Illinois State Penitentiary at Menard, Randolph County, Illinois between the dates of December 20, 1956 and December 18, 1958, inclusive. The matter was heard on May 18, 1959 at Chester, Illinois. No testimony was offered, but an agreed statement of facts is contained in i stipulation filed with the Court. Your Commissioner appeared at Chester, Illinois on May 18, 1959, and examined the records and books in both the offices of the Circuit Clerk and the State’s Attorney, and found that these books and records substantiated claimant’s list of filing fees, sheriff's fees, and State’s Attorney’s fees, which is set forth in claimant's exhibit A. He also found each case numbered and docketed in order with figures for the respective fees.
Similar claims have been filed with the Court of Claims, and have been allowed, as can be noted in an opinion filed March 31, 1953, 21 C.C.R. 427, and in an opinion filed on June 24, 1955 in case No. 4664. The total amount of the present claim is $7,375.50, as set forth in claimant’s exhibit A.
Observations
My examination of the records found everything to be in order to substantiate claimant’s claim.
Conclusion
Claimant has a just claim, which should be paid.
Recommendation
Commissioner recommends that the sum of $7,375.50 be allowed The County of Randolph, as prayed in the complaint.”

An award is, therefore, made to The County of Randolph in the amount of $7,375.50.


text:
    (No. 4863
    Arlene M. Glaser, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1959.

    Berzock, Blaha and Hyder, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

This case involves an accident, which occurred on or about the 19th day of April, 1958 at the intersection of Kedzie and Foster Avenues in the City of Chicago, County of Cook and State of Illinois.

There is very little dispute as to the facts in this case, and this Court has waived the filing of abstract, briefs and arguments.

No answer having been filed by respondent, the laws of the Court provide that a general traverse of the allegations of the complaint will be considered.

There has been filed herein a bill of particulars, a paid repair hill for damages to claimant’s car in the amount of $268.68, and an accident report.

' The Commissioner heard this case on April 16, 1959, and his report was filed on April 20, 1959. In his report the Commissioner recommended an award, and we hereby adopt it as our opinion:

“The above entitled cause was heard on April 16, 1959 in the City of Chicago. Claimant was represented by Fred C. Hyder, and respondent was represented by Lester Slott. This is a property damage claim. Tire total amount of the claim is $268.68. Of this amount, claimant is entitled to $50.00, and the United States Fidelity and Guarantee Company is entitled to the sum of $218.68, if the claim is allowed by this Court.
It appears that on April 19, 1958 claimant was driving her 1957 Plymouth 2-door sedan in a northerly direction on Kedzie Avenue at its intersection with Foster Avenue in the City of Chicago. Robert L. Anderson, a member of the 131st Infantry, Illinois National Guard, was driving a Jeep in a westerly direction on Forest Avenue at the head of a convoy. There are stop lights at all four comers of the intersection. It appears that claimant proceeded across the intersection in a northerly direction. There was a car in back and in front of her vehicle. She was; proceeding with the green light. It appears that Anderson proceeded intp the intersection, and drove his vehicle directly into the side of the automobile of claimant. It appears that he had blown his horn before the accident. There were no Military Police present at the intersection.
Claimant introduced a paid repair bill marked claimant's exhibit No. 1. Respondent did not introduce any evidence.
It is obvious from the facts that respondent, through its agent, Robert L. Anderson, was guilty of negligence, and claimant was free of contributory negligence.
It it, therefore, recommended by this Commissioner that claimant be awarded the sum of $268.68.”

It appears from the record that claimant, Arlene M. Glaser, had a collision policy with the United States Fidelity and Guarantee Company, being a $50.00 deductible policy, and that she signed a subrogation receipt in the amount of $218.68, being the amount she received from the United States Fidelity and Guarantee Company.

It is, therefore, ordered that an award be made to Arlene M. Glaser in the amount of $50.00.

It is, therefore, ordered that an award be made to the United States Fidelity and Guarantee Company in the amount of $218.68.


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    (No. 4678
    Paul Dillard and Berthal Dillard, his wife, and Keith Dillard, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1959.

    Frank E. Trobaugh and Stephen E. Brondos, Attorneys for Claimants.
    Grenville Beardsley, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

The claimants in this case seek consequential damages under Article II, Section 13, of the Illinois Constitution.

The claim is based upon the following facts:

Paul and Berthal Dillard are the owners of certain real estate, which is located at the southeast corner of State Route No. 149 and Pershing Road near West Frankfort, Illinois. The real estate is improved with a filling station near the junction of the road, and a rent house to the west, which fronts on Pershing Road. Paul Dillard’s homes lies to the east of the filling station on Route No. 149. The filling station, itself, is owned by Keith Dillard, and was placed on the land under lease from Paul Dillard.

During the Fall of 1952 and the Spring of 1953, the State raised the grade of Route No. 149 and Pershing Road approximately two feet. Prior to that time, an open ditch ran along both sides of Route No. 149 and the east side of Pershing Road, so that the surface water was readily carried away.

Under the new improvement, the crown of Route No. 149 was removed, and the road was widened about ten feet. The grade was changed, so that the water coming from the east was drained to the south and west. The ditch was removed, and a conduit was put in its place.

It appears from the evidence that the conduit did not take the place of the open ditch, and, as a result, storm water would run down the road, cross over and upon the filling station, then head in a southwesterly direction upon the rent house. The photographs, introduced in evidence, showed conclusively that the area was virtually a pond until the water could drain away.

The rent house was uninhabitable during the rainy season, as the basement would flood. Paul Dillard testified that he was obliged to replace a furnace, which had rusted out.

Claimants allege that, as a result of the improvement, they will be obliged to raise all of the buildings about two feet, haul in fill, and replace pipes, tanks and fittings.

Under Section 8A of the Court of Claims Act, the Court has jurisdiction to hear and determine claims for consequential damages to property arising out of the construction of public improvements. Tenboer vs. State of Illinois, 21 C.C.R. 353.

The evidence establishes damage beyond any argument. However, the proofs as to the amount are in conflict. Both of the claimants have agreed to accept a gross award and to apportion the amount among themselves, so that this Court will not be obliged to make separate awards.

From the evidence, the Court finds that claimants have suffered damages in the amount of $5,000.00.

An award is, therefore, made to Paul Dillard, Berthal Dillard and Keith Dillard in the amount of $5,000.00.


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    (No. 4686
    Paul I. Howell, as Administrator of the Estate of Luella Howell, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

      Petition of claimant for rehearing denied July 24, 1959.
    Brown, Hat and Stephens, and Dunkelberg and Rust, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Paul I. Howell, as Administrator of the Estate of Huella Howell, deceased, filed his claim against the State of Illinois for the wrongful death of his wife, as the result of an accident, which occurred at or about the hour of 10:30 A.M. on September 7, 1954 on highway No. 88 at a point approximately one-half mile north of the junction of Route No. 93, west of the town of Bradford, in the County of Stark.

Mrs. Howell left as her sole and only heirs at law, her husband, Paul Howell, and her son, Clifford Yanda.

Mrs. Howell was riding in the right front seat of the automobile owned and driven by Mr. Howell, being a 1954 Plymouth Club Coupe, in a southerly direction on State Route No. 88. At the time it was misting, and the pavement was wet.

Mr. Howell was driving his automobile at approximately 60 m.p.h. There was an automobile traveling in the same direction, and Mr. Howell turned out to pass this automobile. In returning to the southbound traffic lane, the right front and rear wheels ran off onto the shoulder. Mr. Howell was traveling at approximately the same rate of speed, and his car continued on 15 or 20 feet until the right front wheel struck an obstruction along the shoulder of the road. The obstruction was referred to as tar and was 2 to 3 inches below the paved portion of the highway. This had gathered along the side of the road or shoulder, as a result of tar being placed in the expansion joints. There were slight depressions along* the shoulder, which were below the paved portions, and had been caused by a washing of the shoulder and trucks traveling off of the highway onto the shoulder.

Mr. Howell, in attempting to regain control of his car and turn back onto the concrete, went diagonally across the pavement to the east side of the road, and struck the embankment. Mrs. Howell received injuries from which she died within a very short time.

This was an 18 foot concrete pavement with shoulders on each side 6 feet in width. The highway was level, and there were slight depressions from the edge of the pavement to the earth shoulders.

There appears to be no explanation as to why Mr. Howell drove his car off onto the shoulder after passing the car immediately in front of him. The fact remains that he did lose control of his automobile in driving back onto the right side of the road and then running onto the shoulder, as a result of which his' car went out of control and struck the embankment on the east side of the road.

Mr. Howell explained how he endeavored to gain Control of the automobile. From the distance the car traveled, it appears that he was driving at an excessive rate of speed, which may have been the cause of his car running off onto the shoulder; or it may have resulted from his actions in trying to pass the car in front of him, and return to his proper traffic lane. This road was familiar to Mr. Howell, as he had driven over it many times.

The evidence offered by claimant, other than his own testimony, was furnished by two other witnesses, who saw the Howell car just before the accident. They testified that the car did go out of control, traveled diagonally across the road, and struck the embankment. None of them, however, were able to explain why claimant’s car ran off onto the shoulder, other than the fact that the pavement was wet and there was a patch of asphalt on the west shoulder.

The only other witness testifying was Mr. Martin, a state policeman, who made two reports of the accident, which throw very little light on this case. There was a discrepancy between the two reports, which we believe is not material, as there appears to be no question but what there was an accumulation of tar or asphalt in a depression or groove in the shoulder at the west edge of the pavement, and a lip of such tar or asphalt for a short distance from the west edge of the pavement out to the earth and grass shoulder. Photographs were offered in evidence, which show the height between the shoulder and the paved portion, and the accumulation of asphalt.

There is no question but what Route No. 88 at the time of the accident was under the jurisdiction of respondent, and was maintained by its employees. Furthermore, there is no question but what the shoulder was lower than the paved portion of the road, and that asphalt had oozed out of the expansion joint and accumulated along or near the depression and ruts running parallel with the highway.

Claimant is predicating his case on the condition of the shoulder, failure of the State to warn the traveling public of such condition, and failure to maintain the shoulder along the highway in a better condition.

Respondent not having filed an answer, a general traverse under our rules is considered.

Respondent’s principal defense is the contributory negligence of Paul I. Howell in driving and operating his automobile in which Luella Howell was riding as a passenger as being the proximate cause of the accident resulting in her death.

We have previously held that the State is not an insurer of all persons traveling upon its highways. (Neil Beenes vs. State of Illinois, 21 C.C.R. 83; Terracino, Et Al, vs. State of Illinois, 21 C.C.R. 177; and, Riggins vs. State of Illinois, 21 C.C.R. 434.)

We have had other claims involving the shoulder of a highway, and have previously held that respondent is not bound to maintain the shoulder in the same condition as the paved surface. (Sommer, Et Al, vs. State of Illinois, 21 C.C.R. 259.)

It is the duty of operators of motor vehicles to keep their vehicles under control, and failure to do so would amount to negligence.

The burden of proof is upon claimant to prove freedom from contributory negligence, and that it was the negligence of respondent, which was the proximate cause of the accident in question and resulting damages. The record is silent as to the question of freedom from contributory negligence. From the record, as it now appears, it was the negligence of the operator of the car, which was the proximate cause of the accident, and not the negligence of respondent or its agents.

The claim of the Administrator, Paul I. Howell, for the death of Luella Howell is hereby denied.


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    (No. 4797
    James F. Sinclair, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1959.

      Petition of claimant for rehearing denied July 24, 1959.

    Wesner and Plater, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Hebel, Assistant Attorney General, for Respondent.
   Fearer, J.

James F. Sinclair filed a complaint in this Court on December 2, 1957, and an amended complaint on January 14, 1958, seeking damages for personal injuries sustained by him on December 4, 1956, while he was an inmate of the Illinois State Penal Farm at Vandalia, Illinois, having been committed there through an order of the County Court of the County of Crawford and State of Illinois.

The record consists of the following: •

1. Complaint

2. Amended complaint

3. Order for physical examination of claimant

4. Departmental Report

5. Transcript of evidence

6. Respondent’s exhibits Nos. 1 and 2

7. Respondent’s x-ray exhibits Nos. 3 and 4

8. Statement, brief and argument of claimant

9. Statement, brief and argument of respondent

10. Reply brief of claimant

11. Commissioner’s Report

The facts in this case are brief. The only occurrence witness testifying as to what transpired on the date of the accident, when the personal injuries were sustained, was claimant.

On December 4, 1956, claimant, who had some experience in plumbing, was ordered to insulate a hot water tank in the basement of the boiler room of the Institution by lacing chicken wire around it. He was furnished with a ladder, which consisted of three steps, including the top step, the rear of which was perpendicular. This type of ladder was primarily used by older inmates in the dormitory in getting into the upper bunks, but was-also used in and about the Institution for other purposes. It was approximately 29% inches high, but was not a collapsible or adjustable ladder. Pictures of said ladder were attached to the Departmental Report, and are referred to as respondent’s exhibits Nos. 1 and 2. Another inmate was also working on the opposite side of the tank, which was being insulated.

The hot water tank was one of 55 gallon capacity, and was 6 feet above the floor. There is some question as to whether or not the concrete floor beneath the tank was wet at the time claimant was working. The water tank was above his head while he stood on the ladder, and he was working with his hands above his head at the time.

The negligence charged on which this claim is predicated is that the ladder was not an ordinary stepladder, but that such ladder was used primarily for the purpose of inmates getting into the upper bunks at the Institution. The back of said ladder was perpendicular, and could not be adjusted to compensate for someone attempting to use the same in and about the insulating of a hot water tank, or, in other words, that the ladder was dangerous when used on a slippery wet floor. The complaint alleges that, as a direct and proximate result thereof, claimant fell to the floor, and sustained injuries to the left side of his body, head and shoulder, as well as a fractured wrist, commonly known as a Colles’ fracture:

Claimant contends that he was an employee under the provisions of the Health and Safety Act, and that there would be no question of contributory negligence in a case of this kind. Authorities in support thereof are cited, some of which are Federal Employers’ Liability cases.

We have had occasion to pass on questions similar to those presented us in this case, i.e., Moore vs. State of Illinois, 21 C.C.R. 282 at 288; Sparacino vs. State of Illinois, 22 C.C.R. 571 at 573, wherein this Court held that a convict is not an employee, and that cases of this kind fall under the common law rules of ordinary negligence.

Claimant, being an inmate, must prove by a preponderance or greater weight of the evidence that the injury, which he sustained, was primarily caused by some overt negligence on the part of the State before he can recover. Allen vs. State of Illinois, 21 C.C.R. 450.

We have also previously held that the contributory negligence of an inmate of a penal institution will bar recovery for an injury, which he sustained. Moore vs. State of Illinois, 21 C.C.R. 282.

The type of ladder in question, which was used by the State, did not collapse or break, and thus cause claimant to fall. There is no claim or proof on behalf of claimant that a condition existed, which caused claimant to fall. In fact, it does not appear in the record how claimant fell off of the ladder, and to find the State negligent and claimant free from contributory negligence would necessitate speculating that, because claimant fell from a ladder of the type in question, the State was negligent. Whether claimant improperly placed the ladder underneath where he was working, or whether he leaned too far forward, which would cause him to be insecure on the ladder, and could result in his falling therefrom, is not disclosed. If this was the case, of course, he would be guilty of contributory negligence, which would bar him from recovery. In any event, we do not think that claimant has sustained the burden of proof, which he would he required to sustain in a case of this kind. Under the authorities cited herein by respondent, and under the rules of common law negligence, we will have to deny the claim.

An award to claimant, therefore, must he and is hereby denied.