text:
    (No. 5193
    Krueger Construction Co., Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 19, 1972.

    Frederick R. Pefferle, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber and Lee Martin, Assistant Attorneys General, for Respondent.
   Burks, J.

This claim arises out of a contract entered into between the claimant and the respondent in 1959 for the resurfacing of the mile track and the half mile track at the Illinois State Fair Grounds in Springfield.

The amounts claimed are, allegedly, for additional material deposited on the one mile track, the stockpiling and rehandling of material, and the blading of the half mile track. Claimant contends that these additions to the contract were made at the request of the respondent’s Chief of Construction for the Department of Public Works and Buildings, Division of Architects and Engineers, or by the “associate engineers” employed by the State of Illinois for this project.

Only questions of fact are involved in this case. They relate to the following matters which are in dispute:

1. The quantity of dirt furnished by claimant to resurface the mile track;

2. Whether or not claimant is entitled to additional compensation for expenses incurred in stockpiling and rehandling some of the dirt;

3. Whether or not claimant is entitled to additional compensation for blading the half mile track.

These three areas of dispute must be resolved by a careful examination of the evidence in the record. We will summarize only the testimony presented which we regard as controlling on each of the three issues.

First, we consider, the dispute between the parties as to the quantity of dirt furnished by claimant to resurface the mile track.

Mr. Orlando A. Krueger, Secretary of the claimant corporation, testified that he was the operations supervisor for the claimant and supervised the State Fairgrounds job. He said that the material placed on the tracks was taken from borrow pit sites selected by claimant and approved by the firm of Jenkins, Merchant and Nankivil, consulting engineers for the respondent. This firm is also referred to in the record as associate engineers.

Mr. Krueger testified that on the 6th of June, 1960, after the one mile track had been resurfaced, he made a cross-section of the borrow pits to determine the quantity of material excavated from the pits and placed on the track. Using his field notes and aFrieden calculator, he calculated that claimant removed from the borrow pits and spread on the mile track 10,444 cubic yards of dirt. On the witness stand he explained his method of calculation and introduced into evidence his cross-sections and field notes which were the foundations for his calculations. (Claimant’s Exhibits 1, 2, 3 and 4.)

No witness for the respondent attacked either the cross-sections or the field notes presented by Mr. Krueger. Mr. Carter Jenkins, one of respondent’s associate engineers, testified that the State also made cross-sections of the borrow pits in July and August, 1960, and determined that 8,688 cubic yards of material were placed on the mile track. This is the figure allowed claimant by the associate engineers. The State’s cross-sections were not introduced into evidence nor were the persons who made them called as witnesses. Mr. Jenkins merely testified that, according to the State’s figures, 8,688 cubic yards of dirt were used and he denied claimant’s contention that 10,444 cubic yards were used.

On re-direct examination Mr. Krueger testified that the State’s cross-sections were made after the borrow pits had been flooded by a spring creek running through the area; that the flooding occurred on June 21,1960; that it lasted for a week; that the flooding washed substantial quantities of material into the borrow pits, and that the State’s cross-sections, made after such flooding, could not be used as a basis for determining the volume of dirt removed in the contract operations. This telling argument was not denied by the respondent.

There is sufficient evidence in the record to justify our finding that claimant did in fact furnish 10,444 cubic yards of dirt for the mile track rather than the 8,688 cubic yards allowed by the State. We find that claimant has sustained the burden of proof on this point; that a total of 10,444 cubic yards of material was actually required, which is 1,756 cubic yards over and above that allowed by the associate engineers.

The written agreement between the parties was not a lump sum contract. It was a unit price contract calling for payment at the unit price for the quantities of materials actually used. At the agreed unit price of $2.20 per cubic yard, we find that the claimant should have been paid an additional sum of $3,863.20 for the additional 1,756 cubic yards of dirt actually used in the project.

The second area of dispute concerns the stockpiling and rehandling of material for the tracks, and whether claimant is entitled to additional compensation for this procedure.

Mr. Krueger testified for the claimant that on January 5, 6, 7 and 8, 1960, dirt was taken from the pits and stockpiled in the paddock area at the request of the respondent’s associate engineers; that nothing useful was accomplished by this stockpiling; that it was uneconomical to do; that it involved using a machine to stack it up and make a pile of it, instead of dumping it directly on the track as claimant would normally do.

By invoice dated August 23, 1960, claimant billed the respondent for said additional work. The statement (claimant’s Exhibit 11) showed a charge in the amount of $2,660.00 for rehandling 2,800 cubic yards of dirt; $316.80 for 176 hours of overtime; $47.52 for overhead; a total additional payment of $3,326.97 was requested by the claimant. There is an apparent error in the overhead item but this is not material to the main issue before us.

Mr. James N. Gaunt, who was respondent’s Chief of Construction for the Department of Public Works and Buildings at the time that the contract in question was being performed, was called as a witness and testified for the claimant. Mr. Gaunt’s employment with the State having been terminated in 1962, he had no access to respondent’s records when he testified at the hearing on July 1, 1965.

Mr. Gaunt said he did not believe that stockpiling of material was required by the contract; that the stockpiling procedure was ordered by a Mr. Carl Funk who worked for respondent’s consulting engineers; and he gave the following answer to a question from claimant’s attorney:

“Q And this was (stockpiling) a precautionary measure also to insure that the work would be completed by State Fair time?
“A Well, they had a great deal of it stockpiled. We had several good projects going on up in the northern part of the State, and I was up there part of the time. Then I took a vacation and when I came back the bulk of it was done. I questioned the associate engineer as to why they were doing it and he said he didn’t want to get caught out there with the borrow pit full of water and not get done by Fair time. I said you obligated the State for a lot more cost. He said, Oh, hell, I don’t care what it costs.” (from transcript - page 55)

Mr. Gaunt’s testimony was categorically denied by Mr. Carter Jenkins, member of the associate engineers, who testified for the respondent. Mr. Jenkins stated that no member of his firm authorized the stockpiling, and that claimant did it for his own convenience because the borrow pits selected were subject to flooding.

The following question by claimant’s attorney and the answer by Mr. Jenkins appears at page 43 of the transcript of the second hearing:

“Q Mr. Jenkins, weren’t you yourself concerned about the flooding of the borrow pits and so concerned that you, in fact, requested representatives of Krueger Construction Company to stockpile this dirt during periods of time that they could get into the borrow pit area?
“A No, sir, at no time whatsoever was it ever done by me or any of our representatives. We were surprised one day to find that he had started stockpiling operations. I believe that, under the specifications, the stockpiling would be permitted but would be included in the cost bid for the work to be performed.”

Mr. Jenkins apparently had reference to the following section of the contract specifications:

“23Ó25. If at the time of excavation, it is not possible to place material in its proper section of the permanent construction, and Supervising Architect so directs, it shall be stockpiled in approved areas for later use.” (Claimant’s Ex. 13, page RS-5)

The oral testimony in the record on this point at issue is completely contradictory. However, we do not need to weight the credibility of either witness to resolve this question.

Whether Mr. Jenkins’ employee, Carl Funk, ordered the stockpiling or whether it was initiated by claimant, there is nothing in the contract documents to call for extra compensation for this work. In fact, we interpret the following section 23027 of the specifications to mean that payment at the contract unit price per cubic yard for the total of all material moved covers all aspects of the work.

“23027. Payment for excavation will be made at the contract price per cubic yard for the total of classified or unclassified material excavated and moved in accordance with the plans and specifications or as otherwise specifically directed by the Supervising Architect. The payment for excavation shall constitute full compensation for excavation, hauling, spreading and compacting material in embankment, smoothing graded surfaces, stripping vegetation, removal of all undesirable material, scarifying and recompacting ground surfaces under embankment and all other subsidiary grading operations not specifically set up in the contract as pay items including the furnishing of all labor, equipment, tools and incidentals necessary to complete the work.”

The above section 23027 cannot be lifted out of context for purposes of interpretation. It must be read as an integral part of the entire contract and in connection with other provisions thereof which state conditions precedent to the allowance of any additional compensation. We refer to the following provisions under “General Conditions of the Contract”:

“ARTICLE 22: CHANGES IN THE WORK: (Para. 2)
No change shall be made, unless in pursuance of a written order from the Supervising Architect, stating that the Owner has authorization for the change, and no claim for an addition to the Contract shall be valid unless so ordered.” (Claimant’s Exhibit 13, p. 10)
“ARTICLE 23: CLAIM FOR EXTRAS:
If the Contractor claims that any instructions, by drawings or otherwise, involve extra cost under this contract, he shall give the Supervising Architect written notice thereof before proceeding to execute the work, and, in any event, within two weeks of receiving such instructions. No such claims shall be valid unless so made.” (Claimant’s Exhibit 13, p. 11)

Claimant failed to produce either a written order as required by Article 22 or the advance written notice before proceeding with the alleged extra work as required by Article 23. The absence of such required written evidence confirms our interpretation of section 23025 as stated above. Therefore, claimant’s claim in the amount of $3,326.97 for stockpiling dirt must be denied.

The third and final issue of fact is whether or not claimant is entitled to additional compensation for blading the half mile track.

The record fully supports our finding that the blading of the half mile track was additional work authorized by respondent’s Chief of Operations, James N. Gaunt, and that the work was done by the claimant at Mr. Gaunt’s direction. The reason advanced for blading the half mile track was to get the horses off of the mile track while it was under repair and provide them with a place for training. The work was also requested by the Department of Agriculture.

Respondent’s former Chief of Operations, Mr. James N. Gaunt, testified that $573.60 was a fair and reasonable charge for this additional work, and the court accepts his statement.

On the three issues presented in this cause, the court states its conclusion as follows:

1. That claimant should be awarded the sum of $3,863.20 for an additional 1,756 cubic yards of dirt used in resurfacing the mile track as claimed in the complaint;

2. That claimant’s claim for stockpiling dirt must be denied; and

3. That claimant should be awarded the sum of $573.60 for blading the half mile track, less the sum of $306.46 acknowledged by claimant to be an overpayment for cubic yards of dirt used on the half mile track.

Accordingly, the claimant, Krueger Construction Co., Inc., is hereby awarded the total sum of $4,130.34.


source: Caselaw Access Project

author: Perlin, C.J.

license: Public Domain

text:
    (No. 5464
    Jerome Tyler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 19, 1972.

    Grossman, Kasakoff, Magid and Silverman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks recovery of $15,000 pursuant to the following provision of the Court of Claims Act (8C) which provides that the Court of Claims shall have jurisdiction to hear and determine:

“All claims against the State for time unjustly served in prisons of this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided the Court shall make no award in excess of the following amounts: For imprisonment of 5 years or less, not more than $15,000.. .”

The evidence introduced at the hearing reveals the following: Claimant, Jerome Tyler, was arrested on December 31, 1963, on charges of robbery and rape. The offense allegedly occurred on November 16, 1963. On March 24,1964, he was tried without a jury, found guilty of the charges and was sentenced to the Illinois State Penitentiary for a period of not less than 10 nor more than 20 years for each crime, both sentences to run concurrently. After having served two years, eight months and twenty-eight days, he was released from prison on December 22, 1966.

The evidence reveals that during claimant’s incarceration, his friend, Howard Burks, contacted the Office of the Cook County Public Defender, and gave them information that the claimant was with Burks and several others at the time that the robbery and rape allegedly occurred.

An investigation which was then carried out by the State’s Attorney’s Office established that the parties responsible for the crimes in question were Abraham Barker, Willie Stephens and Clifton Cates; that Abraham Barker entered an apartment occupied by one Oliver Carter and Eleanor Divers, committed the rape and robbery, taking a hi-fi set, and left while Clifton Cates and Willie Stephens waited outside. The investigation was made by Sheldon Schapiro, an Assistant State’s Attorney and Frank Butler, Jr., a detective assigned to the State’s Attorney’s Office.

As a result of the investigation, a motion that a new trial be granted to claimant was made by the Public Defender’s Office. The State’s Attorney’s Office confessed error and agreed to the granting of a new trial. After the order granting a new trial was entered, the State moved to nolle prosse the charges against the claimant, confessing that claimant was innocent of the charge, and the claimant was released from custody.

Schapiro testified as follows: He interviewed claimant in the Joliet Penitentiary, accompanied by Officer Butler and a court reporter. The claimant maintained his innocence and stated that the male complainant “had it in for him” because he had taken a girl friend away from him. Tyler, the claimant, said that his lawyer had instructed him to testify to a false alibi or he would be convicted. In the course of the investigation, it was discovered that the person who had committed the rape and robbery had a scar on his neck. Willie Stephens, who was not charged with the robbery or rape, came to Schapiro’s office and admitted that he was involved in the crime. The statement and admission was received in evidence. Stephens stated that he was with a Mr. Barker, as well as some other individuals, on the night the rape and robbery occurred. None of them was Jerome Tyler. Stephens, Barker and the others went to the male complainant’s house. Barker went upstairs with a toy gun and when he came down, he had a hi-fi set. During the interview it was discovered that Stephens had the same attorney as Tyler did at the time of Tyler’s trial.

A statement of Charles Howard was obtained by Schapiro in which Howard testified that Stephens, Barker, and a man named Cates entered his apartment on the night of the robbery and that after some negotiation with reference to the hi-fi set, the set was brought in and Howard paid them for it. It was later recovered by Officer Butler and was identified by the male complainant as the one stolen from him. Howard also told Schapiro that Jerome Tyler had nothing to do with the transaction. Further investigation showed that Barker had an extensive criminal record and had left town right after the rape and robbery. They then interviewed the male complainant, one Oliver Carter, who steadfastly maintained that Tyler had robbed him and raped the female complainant.

Schapiro and Butler also interviewed the female complainant, Eleanor Divers, who stated that Jerome Tyler was not the party who had raped her, and that she had testified that he was on the instructions of her boyfriend, the male complainant. She stated that the person who attacked her had a scar on his neck.

Schapiro stated that when Willie Stephens made his statement, he was advised that the statute of limitations had expired on the crimes alleged in the original indictments. Schapiro also told Stephens that if he chose to make a statement, it could be used against him in court and Stephens said he understood that.

The attorney who represented Tyler at the time of his trial also represented Stephens who was a suspect in the case, and the alibi to which Tyler testified exculpated Stephens of any involvement in the robbery and rape. That the attorney represented one client to the detriment of another is based on information given by Tyler to Schapiro. Schapiro had no knowledge of whether Stephens, Barker and Howard were social friends of Tyler.

Schapiro further testified that, in his opinion, claimant was innocent of the crime for which he was charged.

Howard Burks testified that he was claimant’s friend and that on the night in question, claimant, Willie Hayes and Ernest Richards drove one Jessie King home. They proceeded to 744 Bowen Avenue, and were sitting in the car drinking when several police cars arrived in the vicinity where they were parked. Five minutes later, he saw Clifton Cates, Abraham Barker and Willie Stephens running up the street. They saw Burks’ car and came over. The three said they hadn’t done anything, but would tell them about it “at the party.” All of the above mentioned people apparently went to a party at Jessie King’s. Burks testified that Abraham Barker told him that he went upstairs to Oliver Garter’s apartment and robbed him of his hi-fi set, but that he left Cates and Stephens downstairs because Oliver Carter knew them. Burks further testified that Abraham Barker told him that he was going to sell the hi-fi set to Charles Howard. Burks stated that on the night the crimes were committed, claimant was never out of his presence from the time they left work until after Barker, Cates and Stephens came to the party.

Burks was questioned by the police after claimant was arrested and he stated that he told them “just what I have said here.” Burks was never again contacted by the police, nor did he have any contact with claimant Tyler until he was released from prison. Burks stated that a month before the trial, he received a letter from Tyler asking Burks to get “all the help I could, all the people that were involved, and have them testify in his behalf so he could be released because we knew that he didn’t have anything to do with the crimes.”

Burks stated that neither he nor any of the other persons who were in the car or at the party were called as witnesses. Burks said that after he heard Tyler had been convicted and sentenced for the crime, he told claimant’s mother that “we would do everything we could to get the man released.” Burks further testified that he knows that Jerome Tyler does not have a scar on his neck and that Abraham Barker does have a scar on his neck. On cross examination, Burks testified that he told police that Barker was the man they were looking for on the same day that they picked up Jerome Tyler. Burks stated that he worked with Willie Stephens, Clifton Cates, Arthur Sims and Oliver Carter, and that these people and Jerome Tyler and Abraham Barker were friends. Burks said that he was present at the court trial of Jerome Tyler and that he told the attorney for Tyler that he wished, to testify. Tyler’s attorney refused to call him and said “he already had his case.” Burks stated that he was unable to hear all the testimony at the trial because he was “too far back.” Burks stated during cross examination, that he was not aware that he could have gone to the State’s Attorney with his statement.

Frank Butler, Jr. testified that he was a Chicago police officer for 11 years and had been assigned to the State’s Attorney’s Office for 8 years. He stated he was assigned by his superior to re-investigate the claimant’s conviction; that he contacted one Willie Stephens and interviewed him in a tavern. The next day, Willie Stephens came to the State’s Attorney’s Office where he gave a statement that did not implicate Jeróme Tyler in the incident, but he did implicate Clifton Cates and Abraham Barker. Butler took a statement from Eleanor Divers who, when shown a picture of claimant, stated that he was not the man who raped her. When she was shown a picture of Abraham Barker, she stated that she was not sure if it was he. Officer Butler further testified that he interviewed Oliver Carter, the male complainant, who maintained that Jerome Tyler committed the crimes in question. Butler examined Jerome Tyler at the Illinois State Penitentiary in the presence of Sheldon Schapiro and Assistant Public Defender, John Doherty, and concluded that claimant does not have a scar on his neck. Butler testified that he also interviewed Abraham Barker who was on probation for robbery and that Barker refused to give a statement, but that he noted that Barker had a scar on the muscle part of his shoulder, on the left side of his neck. Butler’s opinion is that claimant is innocent.

Jerome Tyler, called as a witness on his own behalf, denied any involvement in the crime for which he was indicted and convicted. He testified that he was in an automobile in front of 744 Bowen Avenue when he noticed police squads and saw Willie Stephens, Clifton Cates and Abraham Barker running towards the car. They all went up to the party at Jessie King’s apartment. On cross examination, he stated that at his trial he testified to an alibi that he was sitting in a bar at 41st and Cottage Grove Avenue, and that he was told to testify to this alibi by his attorney.

He further testified that he was Assistant Manager of an F. W. Woolworth store and that prior to his arrest, he had worked for the Moffett Portrait Studio from 1957 to 1959 at $125.00 per week; that he had attended mechanic transmission school and just prior to his arrest was working as an automatic transmission specialist earning an average of $175.00 per week, and was self employed from 1957 to 1963, earning approximately $9,000 per year. Claimant testified that he was innocent; that he had known Oliver Carter for about 15 years before November 16, 1963; and that claimant was with Howard Burks on the evening of November 16, 1963, from 6:00 p.m. until 11:00 p.m. Claimant said his attorney at the time of his trial was Woodrow Hodge. Mr. Hodge did not see the claimant for the months he was in jail prior to the trial. The only time he saw him was when Mr. Hodge told him that he should tell the story he instructed him to tell that claimant was in a bar on 41st and Cottage Grove. Claimant stated that he said exactly what his attorney instructed him to say. He was aware that he was lying. Rose Peterson and Willie Stephens testified for claimant at the trial. Claimant did not ask Willie Stephens to testify. When Stephens gave his testimony, claimant thought that Stephens had committed the crimes. Claimant objected to his attorney, but did not raise an objection with the court.

The female complainant, Eleanor Divers Mulnix, testified that she recalled testifying at claimant’s trial that he was the man who committed the robbery and rape. She was not really positive about her identification but said it so she could get out of court. She believed she was mistaken in identifying Jerome Tyler. She stated that the man who raped her had a scar on his neck.

Respondent contends that claimant has failed to sustain the burden of proving himself innocent of the facts of the crime by a preponderance of the evidence, pointing out that this is distinguished from the raising of a reasonable doubt; (John Hudson vs. State, No. 5164 (1967); that the failure to call Howard Burks at the criminal trial negates his testimony before the Court of Claims and destroys his credibility (Jonnia Dirkans vs. State, No. 4904); that the prior inconsistent statements of Eleanor Divers Mulnix have impeached her; that the fact claimant did not object to perjured statements of Willie Stephens is incredible; that claimant’s actions of fabricating a false alibi, testifying under oath thereto, and allowing two other witnesses to testify falsely on his behalf were the direct cause of his imprisonment; that the State should not be held liable for the claimant’s perjury and other misdeeds where it acted properly and in a legal manner since the theory underlying the State’s liability for wrongful incarceration is that the State acted or did something improperly so as to prejudice the rights of the claimant resulting in his imprisonment for a crime he did not commit; and that claimant’s testimony regarding damages is inconsistent and unreliable.

Claimant replies that the test under the Statute is whether claimant is innocent of the fact of the crime for which he was imprisoned and respondent has presented no evidence to refute the case established by claimant; that the evidence is clear that the person who committed the crimes for which claimant was imprisoned had a scar on his neck and that claimant has no such scar; that former Assistant State’s Attorney Sheldon Schapiro and State’s Attorney Detective Frank Butler testified that when they embarked on the investigation, it was not their purpose to prove the claimant’s innocence which is in no way inconsistent with their conclusion that claimant was innocent of the fact of the crime; that the weight and credibility of the testimony of witnesses Burks and Eleanor Divers Mulnix is a question for the trier of fact; and that claimant was not the master of his own defense in that he was continually incarcerated from the time of arrest until trial and had neither the training nor background to assert every right which a more sophisticated defendant might have invoked. Claimant further contends that he presented evidence of consistent employment dating back four years prior to his arrest, was a skilled specialist in automatic transmissions prior to going to prison, a skill which fell into disuse as a result of his imprisonment.

In the opinion of the Court the claimant has satisfied the sole standard set by the legislative requirements for recovery under Section 8c — proof by a preponderance of evidence that he was innocent of the crime for which he was imprisoned.

Special weight must be given to the testimony of Sheldon Schapiro, the Assistant State’s Attorney who conducted the reinvestigation and Officer Frank Butler who assisted him. Both witnesses have testified that from their investigation, it is their opinion that the claimant was innocent of the charges for which he was imprisoned. The respondent has offered no testimony, nor has it argued that claimant did, in fact, commit the crime for which he was imprisoned.

Claimant is hereby awarded the sum of $6,000.


author: Per Curiam.

text:
    (No. 6674
    Donohoe Asphalt and Paving Company, Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed October 20, 1972.

    Donohoe Asphalt and Paving Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6728
    Terry Hoffman, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed October 20, 1972.

    Terry Hoffman, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6736
    Michael Kocher, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed October 20, 1972.

    Michael Kocher, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6809
    Memorial Hospital of Springfield, Illinois, An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 20, 1972.

    Robert H. Stephens, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6820
    Standard Oil Division of American Oil Company, Claimant, vs. The Board of Regents of the Regency Universities System, Illinois State University, Respondent.

      Opinion filed October 20, 1972.

    Standard Oil Division of American Oil Company, Claimant, pro se.
    Paul E. Mathias, Legal Counsel for The Board of Regents of the Regency Universities System, Respondent.
   Per Curiam.


text:
    (No. 6835
    Clarence Brown, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed October 20, 1972.

    Clarence Brown, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6876
    Estate of Helen L. Kaiser, Deceased, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed October 20, 1972.

    Redman, Shearer, O’Brien and Blood, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for. Respondent.
   Perlin, C.J.


text:
    (No. 6877
    Vic Koenig Chevrolet, Inc., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed October 20, 1972.

    Vic Koenig Chevrolet, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


author: Holderman, J.

text:
    (No. 6264
    J. F. Edwards Construction Company, An Iowa Corporation licensed to do business in the State of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 23, 1972.

    Herbert M. Spector, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant filed an action against the respondent based upon a contract entered into on June 11, 1970.

Claimant alleges that the State of Illinois entered into said contract with claimant for the installation of an underground electrical system and street lighting improvements at the Galesburg State Research Hospital, Galesburg, Illinois.

The allegations are as follows:

“4. That the State has paid, heretofore, the sum of $734,268.12. That said Defendant has refused to pay $3,200.00 of said contract price after a reasonable demand has been made for said amount by the Plaintiff.

“5. That said $3,200.00 is payment for a System Diagram Board as required by paragraph 2160 of said contract. Said System Diagram Board has been installed and accepted by the State of Illinois.”

It is the contention of the State that $850.00 is the balance due claimant under the contract.

Article 2160 of the contract provides that each contractor bidding on the job should “figure in his bid the sum of Three Thousand Two Hundred Dollars ($3,200.00) for the installation of a System Diagram Board . . . .”

Article 2160 then directs the contractor to “see Article 22 of General Conditions of the contract.”

Article 22 reads as follows:

“CASH ALLOWANCES:
“The contractor shall include in the contract sum, allowances named in the Contract Documents, and shall cause the work so covered to be done by such contractors and for such sums as the Supervising Architect may direct, the contract sum being adjusted in conformity therewith. The contractor declares that the contract sum includes all expenses and profits on account of cash allowances. No demand for expenses or profit other than those included in the Contract sum shall be allowed. The contractor shall not be required to employ, for any such work, a subcontractor against whom he has a reasonable objection.”

A re-statement of Article 2160 and Article 22 would be as follows:

a) Each contractor bidding on the Galesburg Hospital Contract shall arbitrarily figure in his bid the sum of $3,200.00 for the purchase price of a “System Diagram Board.”

b) In the course of performing the contract, the contractor shall purchase the System Diagram Board from such subcontractor or supplier and at such price as directed by the Supervising Architect, and cause the same to be installed.

c) The total contract bid sum shall be adjusted (up or down) according to the actual amount of money spent by the contractor in the purchase of the System Diagram Board.

d) If the purchase price of the board which the Supervising Architect shall direct the contractor to buy is less than $3,200.00, the contractor shall not be required to adjust the portion of the total contract bid sum which represents his profit percentage based on the bid figure of $3,200.00; but if the purchase price of the board is more than $3,200.00, the contractor shall not be permitted to ask for an additional profit percentage based on a purchase price in excess of $3,200.00.

e) The contractor shall present no separate or additional demands for any other expenses incurred in the purchase or installation of the System Diagram Board, but shall have figured the same in his total contract bid sum.

Mr. William Volk, an employee of the State of Illinois and the Supervising Architect, stated that the purpose of Article 22 dealing with Cash Allowances is a standard provision in the General Conditions section of the contract, the purpose of which is to put all bidders on an equal footing in bidding on particular items with reference to which, for various reasons, would be difficult.

The facts which are undisputed show that the claimant purchased the Systems Diagram Board for the sum of $850.00 and that it was installed by the maintenance personnel of Galesburg State Hospital without any charge to claimant.

Claimant bases its contention that it is entitled to the sum of $3,200.00 on the grounds that Mr. Volk, the Supervising Architect, did not personally give any direction to the Edwards Construction Company as to who should manufacture the board or the price to be paid and that in the absence of such personal directions from the Supervising Architect, the bid figure of $3,200.00 should control.

The record shows that no directive on the subject of the board’s manufacturing cost came from the supervising architect’s office or its employees bid figure of $3,200.00 should control.

The record shows that no directive on the subject of the board’s manufacturing cost came from the supervising architect’s office or its employees but did come from Mr. Sam Sibley, an employee of the State, who was the electrical engineer on the job. The record does not disclose the source of Mr. Sibley’s authority to issue the directives called for by Article 22 but such directives were acknowledged. Mr. Edwards and he acted upon the same.

It is the opinion of this Court that the sum of $850.00 is the amount due and owing to the claimant and an award of said amount is hereby entered.


text:
    (No. 6384
    Number Two Chicago Dwellings Association, An Illinois Not-For-Profit Corporation, Claimant, vs., State of Illinois, Respondent.

      Opinion filed October 23, 1972.

    Number Two Chicago Dwellings Association, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant seeks the sum of $3,500.00 for uncollected rent as a result of the Cook County Department of Public Aid’s alleged negligence in not implementing a rent withholding order issued by the Department on November 12, 1968, to July 1, 1969, for the recipients of Public Aid who resided at 515-17 West 65th Place, Chicago, Illinois.

The Complaint was filed on November 15, 1971.

Respondent made a Motion For Summary Judgment and as grounds for such Motion calls attention to the fact that this action was filed 137 days after the two year statute of limitations had run.

Respondent supported its Motion by citing the case of Landsman and Zaransky vs. State of Illinois, C.C.R. No. 6025, which was decided April 18, 1972.

In the above cited case, the Court of Claims dismissed the claim for unpaid rent for the reason that the action was filed 22 months after the rent withholding period. This case thus holds that the statute of limitations for rent withholding cases is measured from the last date of the withholding period.

Here the claimant has failed to file this claim within two years following the end of the rent withholding period.

Respondent further argued that claimant is guilty of contributory negligence for failure to take action when it was acquainted with the fact that the rent was not being withheld and called attention to the fact that a letter was written on August 2, 1972, which advised the claimant that the rent was not being withheld.

It is the finding of this Court that the claim not being filed within the period provided for by statute, the respondent’s Motion For Summary Judgment is in order.

Motion For Summary Judgment is hereby granted.


text:
    (No. 5760
    Texaco, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 3, 1972.

    Texaco, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto and the Court being fully advised in the premises;

THIS COURT FINDS that this claim is for gasoline and petroleum products and services for State-owned vehicles for various departments as follows:

Liquor Control Commission NIL

Department of Law Enforcement $4,565.49

Department of Conservation 154.93

Department of Public Health 22.00

Department of Agriculture 154.38

Department of Revenue 39.24

Department of Public Works & Buildings (Now Transportation) 1,712.23

Department of Mental Health 7.79

Department of Children & Family Services 26.36

Department of Corrections 14.59

Legislative Investigating Commission 8.83

Illinois Veterans’ Commission 7.74

Illinois State Scholarship Commission 12.63

Secretary of State 176.98

Attorney General 9.82

for a total sum of $6,913.01 in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 6232
    Carmen Alonzo, d/b/a Carmen’s Movers, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed November 3, 1972.

    Edwin N. Raffel, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6370
    Mrs. Donald Barnett, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 3, 1972.

    Mrs. Donald Barnett, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6385
    Nicholas G. Parise and Patrick McClatchey, Claimants, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed November 3, 1972.

    Leroy A. Garr, Attorney for Claimants.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6462
    Gordon Electrical Construction Company, Inc., Claimant, vs. State of Illinois, Departments of General Services and Mental Health, Respondent.

      Opinion filed November 3, 1972.

    Gordon Electrical Construction Company, Inc., Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6501
    S. Meltzer and Sons, Claimant, vs. State of Illinois, Department of General Services and Mental Health, Respondent.

      Opinion filed November 3, 1972.

    S. Meltzer and Sons, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6700
    Curtis Anderson, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed November 3, 1972.

    Curtis Anderson, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6737
    Alton American, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed November 3, 1972.

    Alton American, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6772
    Mildred R. Jackson, M.D., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 3, 1972.

    Dr. Mildred R. Jackson, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6790
    Vito’s Market, Inc., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed November 3, 1972.

    Vito’s Market, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6797
    Root Brothers Manufacturing and Supply Company, An Illinois Corporation, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed November 3, 1972.

    Korshak, Rothman, Oppenheim and Finnegan, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6845
    Firestone Stores, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed November 3, 1972.

    Firestone Stores, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5625
    James Richard Duncan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 12, 1972.

      Petition of Claimant for Rehearing denied November 9, 1972.

    McBride, Baker, Wienke and Schlosser, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, James Richard Duncan, seeks to recover from the State of Illinois, compiensation for time served by Duncan in a prison in the State of Illinois, at which time he alleged he was innocent.

This action is brought under the provisions of Ch. 37, Sec. 439.8(c), Ill.Rev.Stat., 1967.

The Statute allows recovery to anyone who is unjustly imprisoned in the State of Illinois providing he is innocent of the crime for which he was incarcerated. The Statute provides for various amounts of recovery depending upon the amount of time served.

At approximately 10:10 p.m. on the evening of October 4, 1959, Samuel Schwartz, a fifteen year old boy, was stabbed and killed on the elevated platform of the Chicago Transit Authority at 22nd and State Streets in Chicago, Illinois. There were no witnesses to this crime.

The State, in its prosecution, called Carl Remmer and Louis Mayberry, and both testified that they saw the accused at 2222 South State Street on the night in question and related that he had told them he had just killed a “stud” on the elevated platform a few minutes before. These witnesses also testified that the defendant showed them the knife he had used.

A written confession given to the police on November 12, 1959, was also admitted into evidence. Defendant claims that the confession given to the police was the result of coercion and he further states that he did not give any oral confession to the witnesses above named.

Defendant claims that he was at a dance from 8:30 p.m. until midnight the night of the murder, which facts were corroborated by six other youths. This testimony is directly contradicted by four teen-age girls who testified that the defendant was at the elevated station shortly before the murder, although there was some difficulty by two of the girls in fixing the exact time that they had seen the defendant.

Defendant further testifies to cruelty and other acts of coercion by the Police Department in obtaining the confession.

Among the acts of coercion testified to by the defendant was that he had been placed in the “hole” for some 18 days prior to the alleged confession.

The record discloses that there is also another confession to this same murder by an individual by the name of Charles Baisten.

Defendant was tried and convicted of murder and his punishment was fixed for a term of 30 years, which finding was on the 26th day of January, 1960.

A Writ of Error of defendant’s conviction was taken to the Illinois Supreme Court and in May, 1968, the Court reversed this conviction and the cause was remanded to the Circuit Court of Cook County for a new trial. The new trial was granted and, on or about December 20,1968, a jury in the Circuit Court of Cook County returned a verdict that defendant was not guilty of the murder of Samuel Schwartz and defendant was released from prison in the State of Illinois on that date.

He actually served from November 12, 1959, to December 20, 1968 — a period of nine years.

The Supreme Court, in its decision, reversed the original conviction on the theory that the confession of Duncan was obtained by coercion.

It did not, however, pass upon the guilt or innocence of the accused and, as a matter of fact, this issue was completely ignored.

We, therefore, have before us the following situation: A fifteen year old boy murdered in a robbery attempt, the confession, upon which the original conviction was based, a finding of guilty, a serving of time by the defendant, a reversal of the original conviction by the Supreme Court on the theory that the rights of the accused were violated, and the second trial in which the original confession was apparently not available for the prosecution and a finding of “not guilty.”

The Statute, under which this claim is pursued, is clear in that the claimant must prove his innocence in order to be entitled to an award by the Court of Claims.

The burden is upon the claimant to prove by a preponderance of the evidence (1) that the time served in prison was unjust, (2) that the act for which he was wrongfully imprisoned was not committed by him, and (3) the amount of damages to which he is entitled. Joannia Derkins vs. State of Illinois, No. 4904; Tate vs. State of Illinois, 25 C.C.R. Page 245. Cases therein cited.

We find that the claimant, James Richard Duncan, has failed to prove his innocence of the crime for which he was originally imprisoned.

It is the opinion of this Court that the legislature of the State of Illinois and the language of Ch. 37, Sec. 439.8(c), Ill.Rev.Stat., 1967, intended that a claimant must prove his innocence of the “fact” of the crime. We do not believe it was the intention of the General Assembly to open the treasury of the State of Illinois to former inmates of its prisons by the establishment of their technical or legal innocence of the crimes for which they were imprisoned.

Claim denied.


text:
    (No. 6517
    Belden Manor Shelter Home, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1972.

    Cenco Care Corporation, for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6543
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6696
    B. T. Kavanagh, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed November 13, 1972.

    B. T. Kavanagh, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6698
    Sonny Williams, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed November 13, 1972.

    Sonny Williams, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6699
    Larry Von Nida, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed November 13, 1972.

      Larry Von Nida, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6763
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6764
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6800
    David L. Suprenant, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1972.

    David L. Suprenant, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6855
    James Mazzolini, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed November 13, 1972.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6896
    Parke, Davis and Company, A Michigan Corporation, Claimant, vs. State of Illinois, Department of Public Health, Respondent.

      Opinion filed November 13, 1972.

    Parke, Davis and Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5152
    Jake Van Yzendoorn, Guardian of the Estate of Michael Van Yzendoorn, A Minor; Jake Van Yzendoorn, Guardian of the Estate of Shirley Van Yzendoorn, A Minor; and Jake Van Yzendoorn, Administrator of the Estate of Sarah Van Yzendoorn, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1972.

    Cooney and Stenn, Attorney for Claimants.
    William J. Scott, Attorney General; Saul R. Wexler, and Martin Soll, Assistant Attorneys General, for Respondent.
   Holderman, J.

Jake Van Yzendoorn, as Guardian of the estate of Michael Van Yzendoorn, a minor, as Guardian of the estate of Shirley Van Yzendoorn, a minor, and as Administrator of the estate of Sarah Van Yzendoorn, deceased, filed suit against the State of Illinois asking for an award of Twenty-five Thousand ($25,000.00) Dollars for each of the two minors and an additional Twenty-five Thousand ($25,000.00) Dollars to be paid to him as Administrator of the estate of Sarah Van Yzendoorn, deceased.

The two minors, with their mother, were passengers in a car on the 8th day of March, 1963, which was being driven by one Rheta Hobbs in an easterly direction along and upon Jonathan Creek Road, at or near its intersection with Illinois Route 133, approximately three miles west of Arthur, Illinois, in Moultrie County.

This car, at said intersection, collided with a car driven by one Duane W. Eveland and then collided with another motor vehicle being operated by one Lester Schrook.

As a result of the collisions, Michael Van Yzendoorn, Shirley Van Yzendoorn, and Sarah Van Yzendoorn were seriously injured. Sarah Van Yzendoorn died as a result of said injuries on the 8th day of March, 1963.

The State is charged with negligence in that it did not have adequate and proper traffic control signs at said intersection.

This case has already been passed upon by this Court as the Administrator of the estate of Duane W. Eveland filed suit asking for a recovery of $25,000.00, and alleged in his complaint that the deceased met his death of March 8, 1963, as a result of the same accident in question.

The State has filed a motion to dismiss citing the Eveland case and its findings.

In view of the fact that the entire question of alleged negligence of the State and all the facts concerning the accident were so clearly and concisely set forth in the Opinion of Judge Perlin, 25 C.C.R., Page 256 (1965), it would be repetitious to go over the same facts again.

The above mentioned decision of this Court held that the accident in question was caused solely by the negligence of the driver of the car in which the Van Yzendoorns were occupants and that it was her negligence, and her negligence alone, which caused the accident, injuries and death complained of.

Wherefore, this Court grants the motion to dismiss the instant cause.


text:
    (No. 5391
    Country Mutual Insurance Company and Walter Richards and Scott Richards, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1972.

    Gillespie, Burke and Gillespie, Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, Country Mutual Insurance Company along with Walter Richards and Scott Richards, seek to recover from the State of Illinois the sum of $704.79.

Scott A. Richards sustained damages to his automobile in the above amount and under a policy of insurance issued on August 29, 1966, to said Scott A. Richards, Country Mutual Insurance Company became obligated and paid the sum of $639.74.

The basis on which the claimant seeks to recover the amount claimed is as follows:

On or about August 29,1966, at or near Alternate U. S. Route 30 located one-half mile west of Peck Road in Kane County, Illinois, claimant Walter Richards’ car was being operated by Scott Richards.

The Illinois State Training School for Boys, operated by the State of Illinois, adjoined the highway on which the accident occurred.

The accident in question was caused by a collision between the car being driven by Scott A. Richards and a steer alleged to belong to the St. Charles Boy’s School farm.

The record discloses the following facts: It was a foggy night. The car involved in the accident was being driven at approximately 55 miles per hour and the windshield wipers were not in use. The car struck an Angus steer which was upon the road and the time of the accident was about 1:00 a.m. Three other cars subsequently struck the same animal.

Ch. 8, Sec. 1, Ill.Rev.Stat., sets forth the statutory law relative to domestic animals running at large. The important part of this section is as follows:

“Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.”

The statute is explicit in stating that the owner or keeper is obliged to establish that he used reasonable care in restricting such animals from running at large and it does not require that respondent establish anything beyond that, and specifically it does not require that respondent establish that it did not know the animal was at large.

It follows from a reading of the statute that claimants in cases such as this must prove:

1. That negligence by the claimant did not contribute to the accident;

2. That the owner of the animal had knowledge of the running at large of said animal; and,

3. That he had not used reasonable care in keeping said animal from running at large.

Respondent as a matter of defense must prove that he used reasonable care in keeping said animal from running at large.

The record further discloses the fact that at the time of the accident or shortly thereafter, there were three men in the adjoining field with flashlights who were counting the cattle to see if the steer in question was one of theirs.

The question of the condition of the fence becomes of primary importance as to whether or not the respondent did use reasonable care in preventing animals from running at large upon the highway and as to the condition of this particular fence, the evidence is somewhat meager.

It was described as “sagging” and also “not the best fence in the world” and “I believe an animal could squeeze through.” These three above statements are all the evidence there was regarding the condition of the fence except some photos that were introduced in which it was practically impossible to determine the condition of the fence.

The State did not introduce any evidence of any kind or character in defense.

1. It argued the point that the claimant was not free from contributory negligence;

2. That the claimant had failed to prove that the respondent had knowledge of the steer being upon the road; and,

3. That the claimant had failed to prove that the respondent had not used reasonable care in keeping the animal confined.

There was no evidence to show that the respondent had knowledge of the animal being at large.

Claimant cited the cases of Fugate vs. Murray, 311 Ill. App. 323 and Guay vs. Neel, 350 Ill. App. 111. In effect, these cases state very clearly that the owner of cattle would be liable if his negligence allowed the cattle to get upon the public highway and a motorist was injured. Section 1 of Chapter 8 was amended in 1931. Previous to this time, claimant only had to allege and prove that the cattle were at large and that the plaintiff was damaged as a result thereof. This was aimed at the situations where animals were allowed to run at large upon the highways and roads of the State of Illinois.

It is respondent’s contention that the legislature, by the amendment in 1931, places a burden upon the claimant to show by a preponderance of the evidence that the respondent knew the animal was at large. This claimant failed to do.

Respondent further asserts that until the claimant alleges and proves up a proper case that respondent knew the animal was at large, it is not incumbent upon respondent to embark upon the task of presenting an affirmative defense.

It appears upon a reading of the record in its entirety, that the claimant has failed to establish his case. This being the case, the question of whether or not Scott A. Richards was negligent is immaterial.

Claimant, having failed to show that the fences were not in a reasonable state of repair and that the respondent had not used reasonable care in preventing cattle from running at large, and it not being shown that respondent knew that said cattle were at large, have failed to make the proof required.

Claim denied.


author: Burks, J.

text:
    (No. 5670
    Joseph Francis Busking, a minor, by Irene Busking, his mother and next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1972.

    Reed and Lucas, Attorney for Claimant.
    William J. Scott, Attorney General; Bruce Finne and James Rubin, Assistant Attorneys General, for Respondent.
   Burks, J.

Claimant in this action seeks damages for the loss of vision in his right eye, allegedly caused by the negligent act of an employee of the respondent.

The evidence introduced at the hearings reveals that on March 5, 1965, while claimant was confined to the Pere Marquette State Boys’ Camp, claimant’s eye was struck by a glass shard from a broken door panel. The glass panel shattered when an employee of the State of Illinois struck it with his hand or fist while waving claimant away from the door. Claimant was then 15 years of age. As a result of said injury, claimant has suffered severe and permanent injuries, including total irreversible blindness of his right eye.

The facts in this matter are relatively simple and largely uncontroverted. The respondent presented no witnesses.

The claimant, as punishment for certain misdeeds at the camp (smoking), was not permitted on the day of the accident to enter a television room off a main recreational building at the Camp. A certain door, with a diamond-shaped glass panel, led from the main part of the building to the television room. The claimant, with another companion (James J. Halpin), attempted to watch television through the glass panel. They were waved away by a State of Illinois employee, one Stanley Miller, whose principal duty was the supervision and control of inmates at the Boys’ Camp. Claimant and Mr. Halpin both testified that Miller first waved them away by knocking his fingers against the glass panel. Later, both boys returned to the door and resumed their attempt to watch a television program through the door and resumed their attempt to watch a television program through the door’s glass panel. Miller again waved them away and the claimant withdrew his face from the window. He then immediately put his face back close to the window again. Whereupon Miller rapped on the window again, this time with his fist. The window broke and a glass shard struck the claimant’s right eye.

The claimant’s face began to bleed and he was taken to the washroom by a Mr. King, another employee at the institution. There the area of the right eye was cleansed. The claimant explained that at this time the vision in his right eye was limited to “bubbly like”, “like looking through a microscope”. He was then taken to the Jerseyville Community Hospital which was the nearest medical facility available. He received only emergency treatment there. From the Jerseyville Community Hospital the claimant was taken to St. Joseph’s Hospital in Alton, Illinois. He was examined by a Dr. Kinney, an eye specialist. He was admitted to this hospital as an inpatient, and the following morning (March 6, 1965) surgery under general anesthesia was performed on the right eye. He remained a patient in St. Joseph’s Hospital for about five days. Dr. Kinney made daily examinations and medication was applied directly to the eye.

Upon discharge from St. Joseph’s Hospital, the claimant returned to Pere Marquette. Following his discharge he saw Dr. Kinney on a weekly basis for four or five weeks. He left Pere Marquette in May of 1965 and returned home to Chicago. In Chicago he was sent to Illinois Research and Educational Hospital where he was treated by Michael Lipsich, M.D..

After many outpatient treatments and consultations at Illinois Research, the claimant was admitted as an inpatient on October 12, 1966. On that date he underwent a combination keratoplasty, iridotomy and sphincterotomy operation under general anesthesia. The operations were performed by Michael Lipsich, M.D., with H. Schatz, M.D., assisting. The post-operative period was complicated by a severs anterior chamber hemorrhage which took ten days to clear. He was discharged on October 26,1966, and ordered to apply Atropine and Hydrocortisone medication each twice daily. He was to wear a shield over his right eye at all times and engage only in moderate activities. At the time of discharge his vision was limited to light perception and projection. On November 16, 1966, as an outpatient, the claimant’s eye was cauterized to stop a hemorrhage condition that had developed.

On July 20, 1970, the claimant was examined by William Rosenberg, M.D., a physician specializing in the practice of Opthalmology. This examination was conducted at the request of the respondent, pursuant to its letter of June 26,1970. Dr. Rosenberg’s report substantiates the fact of the claimant’s corneal laceration and the surgical procedures which followed. He reports that the claimant has only finger-counting ability in the right eye at a distance of one foot and that the prognosis for improved vision is poor. When the claimant was examined in October of 1970 by his former opthalmologist, Dr. Michael P. Lipsich, the report generally corroborates the respondent’s examining physician’s findings.

The medical evidence supports a finding that claimant has suffered severe, painful and permanent injuries to his right eye amounting to almost total blindness in that eye.

We turn now to the question of the proximate cause of claimant’s injury. Claimant contends that respondent, through its agent and servant, Stanley Miller, was negligent in knocking at a glass window when he knew the claimant’s face was directly on the other side.

Claimant does not allege that Mr. Miller intended to break the glass nor that he knew the glass would break from the force of his blow. Claimant charges that Miller should have foreseen or anticipated the probable consequences of his negligent act. Both parties agree that foreseeability is one of the tests of proximate cause. We believe that the rule applicable in this case is stated in I.L.P. Negligence §105 as follows:

“The injury or damage must be of such a character that a man of ordinary prudence, sagacity, and experience ought to have foreseen it might probably occur as a result of the negligent act. If the injury or damage is one which could not have been foreseen as a probable result, the act complained of is either a remote cause of the injury or damage or not cause at all.
“On the other hand, where it could have been reasonably foreseen that some injury might result from the negligent act complained of, it is not essential that the precise consequences which actually resulted therefrom should have been foreseen. So it is not necessary that the exact particulars of the accident which actually occurred, or that the precise injury or damage which resulted, should have been foreseen.”

Applying the above rule to the facts in this case, we believe that respondent’s employee, Stanley Miller, was negligent and that his negligence was the proximate cause of claimant’s injury. Mr. Stanley Miller selected an improper and unnecessary method of warning the claimant to stop watching TV through the glass window of the door. It was improper because a reasonable person knows, or should know, that window glass can break and will break if enough pressure is applied. Window glass does not always break with a knock, but when you can see a person’s face directly opposite you on the other side, it is negligence to strike the glass. It was unnecessary negligence because the door could easily be opened and there was no reason to communicate with a boy through a closed door by striking the glass with his fist. On prior occasions Mr. Miller opened this very door when he wanted to talk to someone on the other side.

Respondent concedes that claimant’s injury was proximately caused by the blow struck by respondent’s employee. The State does not argue that a shattering of glass by a blow of this nature is unforeseeable as a matter of law. It merely contends that the consequences were not “within anyone’s normal expectations”. This contention does satisfy the rule, stated above, which is based upon foreseeability and not expectations.

The final issue raised by the respondent is whether the claimant was free from contributory negligence. Arguing that “foreseeability is a two-way street”, respondent contends that claimant should have anticipated Miller striking the glass with his fist; that the glass might shatter; and that the claimant thus knowingly exposed himself to the danger of foreseeable injury (citing I.L.P. Negligence §125). We could not impute such exceptional foresight to an adult person under the facts presented in this case, and much less to a boy of 15. There was nothing in Mr. Miller’s previous conduct to suggest that he would react at this time as violently as he did. While claimant was acting improperly in putting his face near the glass panel in order to watch television, after being warned not to do so, the injuries which he suffered did not come within the particular risk created by his own conduct.

In arriving at the amount of claimant’s damages, we have taken into account the extreme pain and suffering which claimant endured over a long period of time; the loss of earning capacity due to his disability and permanency of his injury. The spector of living out his life essentially blind in the right eye is the cold reality this claimant faces and has faced since 1965 when he was 15 years of age. We believe that the nature and extent of the claimant’s injuries fully supports an award of the maximum amount that was recoverable in an action against the respondent on the date of the accident.

The claimant, Joseph Francis Busking, is hereby awarded damages in the sum of $25,000.


text:
    (No. 5785
    Howard C. Medley, d/b/a Medley Movers and Van Lines, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed November 14, 1972.

    Edward A. Williams, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5932
    Kenton L. Powers, Guardian of the Estate of Larry Allen Powers, a Minor, and Kenton L. Powers, Individually, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1972.

    Maynard and Brassfield, Attorney for Claimants.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, Larry Allen Powers, a minor, by Mary Ann Powers, his mother and next friend, and Kenton L. Powers, Individually, and as guardian of the estate of Larry Allen Powers, a minor brought suit against the State of Illinois for injuries arising out of an accident on the 20th day of February, 1969.

The claimant, a minor, was a passenger in a car driven by one Larry S. Telander.

The car in which the claimant was riding was being operated in a westerly direction on a road called Blackhawk Road in the County of Winnebago and State of Illinois.

This car was involved in an accident with another car driven by one Carol Hollenbaugh.

Claimant’s contention is that the road was slippery and icy and was exceedingly dangerous to drive on.

Claimant received very severe injuries and as a result of said injuries has become a quadriplegic.

A great deal of money has been spent upon him for medical care, hospitalization, etc. and said claimant is still under medical care and spending rather large sums for his continued care and treatment.

Claimant filed suit in the Circuit Court of Winnebago County against Larry S. Telander and Carol Hollenbaugh. A settlement was made in the amount of $46,500.00 and a covenant not to sue was issued by Kenton L. Powers, individually, and as guardian of the estate of Larry Allen Powers, a minor, and a stipulation was entered into.

The State of Illinois has made a motion for summary judgment against the claimant. The basis for this motion is that they advanced the theory that the claimant, in a case such as this, is entitled to one satisfaction and the Court must deduct from the statutory limit the amount received under the covenant not to sue. In this case, the maximum amount recoverable is the sum of $25,000.00, and as the recovery already made greatly exceeds said $25,000.00, the State’s theory is that the claimant is not entitled to any further recovery.

In support of the State’s motion, they cite the case of The Estate of Sam Anzalone vs. State of Illinois, 24 C.C.R. 172 (1961). In that case, the claimant received $20,000.00 from a joint tortfeasor and the statutory limit in the Court of Claims is $7,500.00. The Court, therefore, denied recovery to the claimant.

The State also cited the case of Williams vs. State of Illinois, 25 C.C.R. 249 (1965). In that case, the Court held that the claimant was entitled to only one satisfaction and any amount received in exchange for a covenant not to sue must be deducted from the specified statutory limit.

Claimant contends that any set-off should be against total damages and not the statutory limit and that there is a difference between total damages and the statutory limitation. He further argues in the present case that the amount set forth in the covenant not to sue is not the total damages that could be recoverable for the injuries sustained by the claimant, who was badly injured.

It is our opinion that the statutory limits as fixed by the legislature in the amount of $25,000.00 determines the amount that can be allowed in cases such as the one at bar and, therefore, the motion for summary judgment is granted.


text:
    (No. 6346
    Weber, Griffith and Mellican, Inc., Claimant, vs. State of Illinois, Departments of Mental Health and General Services, Respondent.

      Opinion filed November 14, 1972.

    Weber, Griffith and Mellican, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6410
    Kenneth H. Moore, Claimant, vs. State of Illinois, Department of Local Government Affairs, Respondent.

      Opinion filed November 14, 1972.

    Kenneth H. Moore, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6424
    Silver R. Shearer, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed November 14, 1972.

    Silver R. Shearer, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6595
    St. Therese Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 14, 1972.

    St. Therese Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6604
    Xerox Corporation, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed November 14, 1972.

    Xerox Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6690
    Edward L. Mansfield, d/b/a Mansfield Electric Company, Claimant, vs. State of Illinois, Illinois State Fair Agency, Respondent.

      Opinion filed November 14, 1972.

    Edward L. Mansfield, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6770
    The Field and Shorb Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed November 14, 1972.

    The Field and Shorb Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6844
    Judith K. Hamilton, Administrator of the Estate of Robert M. Hamilton, Deceased, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed November 14, 1972.

    Taylor, Taylor and Sikes, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6865
    Mary Ann Russell, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed November 14, 1972.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6883
    A. B. Dick Company, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed November 14, 1972.

    A. B. Dick Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6887
    Sarah Donelson, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed November 14, 1972.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6942
    Keenan Printing Company, Claimant, vs. State of Illinois, Fair Employment Practices Commission, Respondent.

      Opinion filed November 14, 1972.

    Keenan Printing Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6362
    Rozelle Jeffery Spencer, d/b/a Aaron Bros. Moving System, A sole proprietorship, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed November 21, 1972..

    Rees and Sullivan, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6488
    Frank M. Summers, Claimant, vs. State of Illinois, Fair Employment Practices Commission, Respondent.

      Opinion filed November 21, 1972.

    Frank M. Summers, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6565
    Belden Manor Shelter Home, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 21, 1972.

    Cenco Care Corporation, for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6572
    Black and Company, Claimant, vs. State of Illinois, Various Agencies, Respondent.

      Opinion filed November 21, 1972.

    Black and Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6646
    Richard C. Powers, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 21, 1972.

    Dr. Richard C. Powers, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6816
    Mason-Barron Laboratories, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 21, 1972.

    Mason-Barron Laboratories, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6839
    Thomas P. White, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed November 21, 1972.

    Thomas P. White, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6848
    Standard Stationery Supply Company, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 21, 1972.

    Standard Stationery Supply Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6851
    Jo Ann K. Meade, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 21, 1972.

    Jo Ann K. Meade, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6852
    Marguerite Nicholson, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed November 21, 1972.

    Marguerite Nicholson, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6856
    Eloise Lowe, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed November 21, 1972.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6866
    Smith Oil Corporation, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed November 21, 1972.

    Smith Oil Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6870
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed November 21, 1972.

    D. K. McIntosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5746
    Charles Long, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1971.

      Petition of Claimant for Rehearing denied November 27, 1972.

    Nettles and Mahoney, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.

The claimant, Charles Long, an adult, was injured at the Palisades State Park near Savanna, Illinois, on April 17, 1969, at 4:40 p.m.

Claimant had gone to the park to visit a particular flowing spring as he was in the habit of securing water for his plants and garden and for drinking purposes. The City of Savanna water supply was chlorinated and the claimant preferred to use the spring water for domestic purposes and for the purposes above stated.

This was an established practice of the claimant as he had made at least twenty-five visits to this particular fountain and was familiar with the spring and its setting.

This fountain was in a masonry enclosure and the area around the fountain was paved with large stones.

Claimant testified that this area was wet, mossy and slippery with some leaves and other debris around the fountain area.

There is, according to the photographs in evidence, a metal grill which is directly under the flowing pipe which drains the water away.

On the day in question, the claimant, who was a laborer, was wearing his clothes that he wore to work, also his usual work shoes and, while attempting to get some water, he slipped and fell and injured his right arm, which required some medical care and attention.

It is the contention of the claimant that the Palisades State Park was owned and under direct control of the respondent and that the public was invited to use its facilities and was responsible for its care and maintenance.

Claimant further contends that the Palisades State Park was negligent in not eliminating the moss and leaves around the fountain, which he contends made the area slick.

Claimant also testified that it did not rain the day of the accident nor had it rained the day before though this is in direct contradiction to one of the Ranger’s Reports which indicated that it had not only rained the day of the accident but also had rained the day before.

It is also contended that respondent was fully aware of the conditions, the wetness, moss and slipperiness and had actual or constructive notice that these conditions existed at the time of the accident.

Claimant also contends that there was not any contributory negligence on his part but, on the contrary, by wearing work shoes that this did give him better footing than usual.

The issue of this case is simply to determine whether or not the State was negligent in its care and operation of the park and particularly the fountain area and did the injury complained of result from that fact and was the claimant free from contributory negligence.

It is clear that this visit was but one of many made by claimant, not for the purpose of visiting the park in the ordinary manner of a tourist or for recreational purposes, but for the sole purpose of procuring natural spring water for domestic and garden use.

Secondly, the claimant, due to his many visits, was familiar with the fountain area in every detail and was accustomed to seeing leaves, moss and water around this particular area.

It is also clear that it had rained on the day in question, and also the day before, and as to whether the wetness on the rocks near the fountain was occasioned by the rain or by the fountain is not clear. Undoubtedly, the rain would be a contributing factor and as to whether or not this area is wet without the rain, or whether the steel grill directly under the fountain provides ample drainage, is not determinable from the records.

We have, therefore, a situation where an individual, claiming to have exercised due care, came to a State Park and slipped on wet stones on a rainy day in an area where there is a natural spring flowing.

The State is not an insuror against accidents occurring to patrons while using the park. (22 C.C.R. 35, 22 C.C.R. 446.)

The Court also calls attention to the Doctrine of Assumed Risk as set forth in Volume 21, Page 467, C.C.R., which states further that “an individual who visits a State Park assumes the ordinary risk that would be attendant to such visits.”

We would also like to call attention to Volume 22, C.C.R., Page 484, where the Court in passing upon an accident on a public street made the following statement “claimant is required to exercise a degree of care commensurate with the circumstances and will not be heard to say that she did not see what she must have seen if she properly exercised her faculty of sight.”

In this case, claimant was fully aware of the conditions existing at the fountain, having been there on many occasions, and would certainly have to have been aware of the conditions when he visited on the day in question when it was raining.

The Court would also like to call attention to a case recorded in Vol. 22, C.C.R., Page 29.

This case involved an accident at the same park. The facts in this case were as follows. A woman visitor at the Palisades State Park slipped and fell on the concrete floor of the Womens Lavatory, located in the park. This particular floor was of smooth concrete, sloping in all directions toward a drain which was countersunk in approximately the center of the floor. The accident happened on June 25, 1950, and the moisture was apparently caused by the condensation of moisture in the air as it was hot and humid on the outside of the building, yet cool and comfortable on the inside of the lavatory building.

The Court, in passing upon this case, restated the proposition that the State is not an insuror of the safety of the patrons of the park and that further the conditions complained of were apparent to the injured party, and that she should have observed such a degree of care for her own safety as would be necessary and that she also assumed whatever risk was involved in going upon the wet floor.

This case is certainly greatly similar to the present case as, in both instances, the injured parties had full knowledge of the conditions and yet, despite this knowledge, proceeded to go upon the premises, resulting in the injuries in question.

It is the finding of this Court, therefore, that the burden of proof is upon the claimant to show freedom from contributory negligence and when he fails to make such burden, his claim will be denied, and it is our opinion in the present case that claimant failed to make such proof and the claim is, therefore, denied.


text:
    (No. 6359
    Phillips Petroleum Company, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed November 28, 1972.

    Phillips Petroleum Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6405
    Good Shepherd Manor, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 28, 1972.

    Good Shepherd Manor, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6443
    Cities Service Oil Company, Claimant, vs. State of Illinois, Various Agencies, Respondent.

      Opinion filed November 28, 1972.

    Cities Service Oil Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6652
    Illinois National Bank, Agent for A. D. Kufdakis, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed November 28, 1972.

    Illinois National Bank, Agent for A. D. Kufdakis, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6691
    W. T. Grant Company, A Corporation, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 28, 1972.
    Apoian and Ross, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6810
    Norman J. Gregory, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed November 28, 1972.

    Edward E. Reda, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6857
    Donna Walsh Sanchez, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed November 28, 1972.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6875
    Travenol Laboratories, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 28, 1972.

    Travenol Laboratories, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6917
    Donna Potratz, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 28, 1972.

    Lytton and Dalton, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6920
    Ferro Corporation, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed November 28, 1972.

    Ferro Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6944
    Robert A. Williamson Co., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed November 28, 1972.

    Robert A. Williamson Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6947
    Daniel N. Michel, Sheriff of Fayette County, Illinois, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed November 28, 1972.

    Daniel N. Michel, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6954
    Central Office Equipment Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed November 28, 1972.

      Central Office Equipment Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6419
    Dortch The Mover, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed December 8, 1972.

    Dortch The Mover, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6637
    McLean County Mental Health Center, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 8, 1972.

    McLean County Mental Health Center, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Berlin, C.J.

text:
    (No. 6660
    Herschel L. Sunley, Claimant, vs. State of Illinois, Departments of Public Health and General Services, Respondent.

      Opinion filed December 8, 1972.

    Herschel L. Sunley, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6811
    Donohoe Asphalt and Paving Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 8, 1972.

    Donohoe Asphalt and Paving Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6853
    Marion P. Lindsay, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed December 8, 1972.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6882
    Lexington House, Inc., A Delaware Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 8, 1972.

    Leiter, Newlin, Fraser, Parkhurst and McCord, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6913
    Mason-Barron Laboratories, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 8, 1972.

    Mason-Barron Laboratories, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6918
    Cowell and Lewis, Inc., A Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 8, 1972.

    Thomas, Thomas & Maggio, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.