text:
    (No. 5021
    Adriana Ryan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1966.

      Petition of Claimant for Rehearing denied April 20, 1967.

      Caliendo and Connor, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Dove, J.

This is an action brought by claimant, Adriana Ryan, against respondent, State of Illinois, to recover $10,000.00 in damages for personal injuries, which she sustained on March 6, 1960 when she slipped and fell upon the floor in the Administration Building at the Illinois Industrial School for Boys at Sheridan, Illinois, where she was visiting her son, Thomas Ryan, who was an inmate.

Claimant contends that respondent by its agents and servants carelessly, negligently and recklessly permitted the floor of the Administration Building to be and remain in a dangerous, defective, and otherwise unsafe condition, in that the floor was “highly slippery and slick due to the application of a foreign substance to the surface thereof”; that respondent and its agents and servants had notice of the condition of said floor, or, in the exercise of due care and caution, should have had notice.

Claimant testified that on March 6, 1960, which was a regular visiting day at the Illinois Industrial School for Boys at Sheridan, Illinois, she went to visit her son who was an inmate at the school; that Charles Post and his wife, Harriet Post, who also had a son at the school, picked her up near her home in Chicago, and drove her to Sheridan. When she arrived at the school, she requested the key to the ladies * room. As she walked through the lobby toward the ladies’ room, she was wearing low-heel shoes, commonly known as “loafers”; that the floor looked glassy, and smelled strongly from the odor of wax, and she noticed a boy who was applying wax to the floor. She then walked to the ladies’ room, and on her way slipped on either a highly polished or damp spot, which caused her to lose her balance, fall, and fracture her leg at the right knee. She experienced a sharp pain in her right knee, and was unable to rise. She was helped to her feet by another lady who was present in the lobby, and proceeded to the wash room. The Posts had gone to get a cup of coffee at the time of the accident. After leaving the wash room she returned the key to the switchboard operator, and informed him that she had fallen, and stated she did not think she would be able to walk to the building where the visiting room was located. When she was called to visit her son, Mr. and Mrs. Post aided her to the visiting area. She visited with her son for approximately two hours, and then left the premises with the Posts who drove her to her apartment in Chicago. The testimony of Mrs. Post corroborated the statements of claimant.

Later, on the same day, claimant was taken to a hospital by ambulance, and was examined by Dr. C. R. Von Solbrig. He gave her pills, and confined her to bed in the hospital where she remained for approximately five days. Her right knee was set in a plaster'cast extending from the ankle to the upper part of her right thigh. She was treated at home by Dr. Von Solbrig for approximately two months, and was released from his care in May, 1960.

On cross-examination, claimant stated that her son had been an inmate at Sheridan for approximately nine months prior to the accident; that she had visited him about every two weeks, or about eighteen times in all; and, that her son, James, had been an inmate at Sheridan, and she had visited him there many times. She had used the wash room a number of times prior to the date of the accident. The floor had been highly polished on those occasions, but she had never fallen.

The witnesses for respondent testified that the floors in the Administration Building were clean and polished, but were not slippery; that they had worked at Sheridan for many years, but no one had slipped and fallen on the floor before.

In the case of Lindberg vs. State of Illinois, 22 C.C.R. 29, claimant sought to recover damages for personal injuries, which she sustained when she slipped and fell upon the concrete floor of the women’s lavatory located in the Mississippi Palisades State Park. The Court said:

“It is fundamental that respondent is not an insurer of the safety of the patrons of the park, and, at the most, can only be held to that degree of care, which a reasonably prudent individual or organization would use in constructing and maintaining a like structure in a like location, under the same and similar circumstances. It is likewise fundamental that the burden of proof is upon claimant to establish negligence on the part of respondent, as well as her freedom from contributory negligence, before recovery can be had. In our judgment, claimant has not borne this burden of proof.
“It is clear from the evidence, and particularly from claimant’s own testimony, that the very condition complained of was as apparent to claimant, as it would have been to any agents or servants of respondent had they been present. She, therefore, should be held to as high a degree of care for her own safety, as would be required of respondent in its conduct toward her. She should also be held to have assumed whatever risks were involved in going upon the wet floor, which were within themselves an incident to such act. There was no hidden danger. She was completely cognizant of the condition of the floor. The case, it seems to us, does not present a different situation in this regard than do those cases wherein a slippery condition on the floor of a building has been brought about by rainfall. The law of Illinois is well settled in those cases wherein the person injured had as much knowledge of the condition as the owner of the store or building.”

The burden of proof is upon claimant to prove by a preponderance or greater weight of evidence that it was the negligence of respondent, which was the proximate cause of her injuries, that she was free from any negligence whatsoever, and did not in any way contribute to her own injuries. It is our opinion that claimant has failed in this respect.

We, therefore, hold that claimant is not entitled to recover.


source: Caselaw Access Project

author: Dove, J.

license: Public Domain

text:
    (No. 5031
    Bank of Lyons, an Illinois Banking Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 17, 1966.

    Petition of Claimant for Rehearing denied April 20, 1967.
    James C. Spangler, Attorney for Claimant.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Bank of Lyons, an Illinois Banking Corporation, instituted this action to recover damages suffered as a result of the loss of its security interest in a certain motor vehicle.

It appears from the record that on January 25, 1959 claimant received an application for an auto loan from Charles W. Barry. On January 30, 1959, Barry executed a note in the amount of $2,557.50, secured by a chattel mortgage on the motor vehicle, and surrendered his certificate of title to claimant. The chattel mortgage was recorded on February 9, 1959 in the Office of the Recorder of Deeds of Cook County. On February 3, 1959, claimant transmitted the certificate of title, together with an application for corrected certificate, to the Office of the Secretary of State. The corrected certificate of title, showing claimant’s security interest, effective as of February 11,1959, was thereafter returned to claimant.

Barry made one payment on his note, but it appears that he was in default since the month of March, 1959. In June, 1960, Barry applied to the Secretary of State for a duplicate certificate of title upon the representation that the original had been lost. This was attempted by the means of forged documents, which purportedly contained a release of the lien of claimant. This was done, of course, without the knowledge or consent of claimant.

These documents were received for processing in the Office of the Secretary of State, and, on June 29, 1960, a duplicate certificate of title was issued to Barry for the automobile. However, Barry did not receive the duplicate certificate, and, through the effort of claimant, it was recovered and returned to the Secretary of State. It also appears from the record that, through the effort of claimant, the duplicate certificate was revoked, and the earlier notation of claimant’s lien reinstated.

Subsequently, claimant succeeded in having the automobile repossessed by a Constable of the Town of Brook-field, Illinois. The Constable, upon repossession, placed the automobile in claimant’s parking lot, and turned the keys over to an official of claimant. Within a few hours the automobile was removed from the parking lot, and it is assumed by claimant that it was stolen by Barry. However, there is no evidence to this effect. Since that time all efforts to locate Barry or the automobile have been unsuccessful. Upon these facts claimant seeks to impose liability on the State of Illinois for the loss of its security interest, as well as accrued interest and costs of its efforts to recover the automobile.

Assuming, without deciding, that the Office of the Secretary of State was negligent in their issuance of a duplicate certificate of title, claimant still should not be able to recover. The denial can be attributed to either of two reasons. Both of these reasons deal with the causation factor.

First, it has been shown that Barry was never in possession of the duplicate certificate of title. Claimant should not be penalized for its diligence in locating and returning the duplicate certificate to the Secretary of State, but if Barry did not gain possession of the corrected title, his whole plan was spoiled. In other words, even if it is assumed that the Office of the Secretary of State was negligent, the cause of claimant’s injury cannot be attributed to the Secretary of State, but must lie with Barry or the person who removed the automobile from claimant’s parking lot.

The second basis is that, after claimant had knowledge of the fraud, it gained possession of its security. Regardless of the capacity in which the Constable repossessed the automobile, the evidence shows that the automobile was in possession of claimant when it was stolen.

We are of the opinion that the Secretary of State’s office was not the cause of claimant’s loss. Although a person may be negligent in the performance of some duty owed to the person damaged, no liability attaches unless such negligence was the proximate cause of the injury suffered. Walaite vs. Chicago, R.I. and P. Ry. Co., 376 Ill. 59, 33 N.E. 2d 119 (1941); Gray vs. Pflanz, 341 Ill. App. 527, 94 N.E. 2d 693 (1950).

In the opinion of this Court, claimant has not proved by a preponderance of the evidence the elements necessary to a recovery.

An award to claimant, Bank of Lyons, An Illinois Banking Corporation, is, therefore, denied.


author: Perlin, C.J.

text:
    (No. 5135
    Balys Poskus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1967.

    Edwin W. Sale, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, Dr. Balys Poskus, seeks recovery of $1,812.25 allegedly owed to him by respondent for services rendered as a physician at the Kankakee State Hospital for the period beginning July 1, 1961 and ending June 30, 1963.

Dr. Poskus testified as follows:

That he was employed at the Kankakee State Hospital, Kankakee, Illinois, as a half-time physician, and was classified as a Physician V. His employment commenced on or about July 22,1957, and he went on half-time status about September 1, 1958. The pay scale for a half-time physician was based upon that of a full-time physician, i.e., a half-time physician was to receive one-half of the base pay of a full-time physician. Until July 1, 1961, the base pay for a full-time physician was $977.00 per month, and on that date it was increased to $1,015.00 per month. On January 16, 1962, the base pay was again increased to $1,170.00 per month. Despite the pay increases, Dr. Poskus continued to receive one-half of the base pay of a full-time physician at the rate of $977.00. He questioned his superiors during this time as to why he was not getting the increased pay, but was told only that half-time doctors were not entitled to the raises. Respondent introduced no testimony.

The Report from the Department of Mental Health, signed by Gabriel Mise vie, M.D., Superintendent of the Kankakee State Hospital, reveals the undisputed facts in the following excerpts:

“Dr. Poskus is a physician authorized to practice medicine in the State of Illinois, License No. 31309. He was re-employed with the Department of Mental Health, State of Illinois, Kankakee Stajke Hospital, on July 24, 1957. On September 1, 1958, he was reassigned as a part-time physician at a salary rate of $488.50.
“The DPW 1108 reflects Dr. Poskus’ part-time salary on July 1, 1961 as $507.50. The $507.50 rate continued until January 15, 1962. Then, on January 16, 1962, the rate was increased to $585.00.
“Payroll voucher records in this office indicate that Dr. Poskus was paid at the rate of $488.50 from July 1, 1961 through June 30, 1963.
“Records in this office indicate that Dr. Poskus was underpaid $1,812.25.
“Records indicate Dr. Poskus has a just claim with the State of Illinois in the amount of $1,812.25.”

Claimant has also submitted a letter, which was received by him from Harold M. Visotsky, M.D., Directo! of the Department of Mental Health, dated October 11, 1963, which reads in part as follows:

“We regret that we did make an error, and that you are correct in that the total gross salary underpayment for the period of July 1, 1961 to June 30, 1963 is $1,812.25.”

Respondent' contends that claimant is barred from asserting his claim when he received and accepted lesser pay. Respondent further alleges that the following constitutional and statutory provisions proscribe the payment to claimant of any amount:

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void;” (Illinois Constitution, Article IV, Sec. 19.)
“Amounts paid from appropriations for personal services of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher, and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose, or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed, and for which remuneration had already been made.” (Par. 145 (3), Chap. 127, Ill. Rev. Stats.)

This Court has applied the foregoing provisions in a long line of cases, none of which present the same fact situation as found in the instant case. The rationale running through all the eases on which respondent relies is expressed as follows:

“A claimant cannot accept salary warrants purporting to cover the full amount due him for services during stated periods, and thereafter, when his active service has ended, obtain an award from the State for an additional amount for those periods for which he had apparently been paid for services in full.” (Agsten, et al vs. State of Illinois, 13 C.C.R. 8; Mills vs. State of Illinois, 9 C.C.R. 69; Clayton vs. State of Illinois, 21 C.C.R. 321.)

Nowhere is it contended that claimant is requesting additional compensation for services performed, or that he has performed extra services. He is not asking payment for more than was appropriated, or for more than his contract of employment specifically provided, i.e., half the salary of a full-time physician. Because the contract of work was in a definite amount, and the sum paid to him by respondent was admittedly below this amount, it cannot be contended that he was “apparently paid for services in full”. Respondent’s agents have clearly established that the sole reason for the nonpayment of the requested amount was a mistake. They have further established that claimant was entitled to the sum of $1,812.25, which would have been paid to him but for respondent’s mistake. Respondent cannot profit from its own errors.

Accordingly, claimant is hereby awarded the sum of $1,812.25.


text:
    (No. 5351
    Illinois Bell Telephone Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1967.

    Robert T. Achor, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Illinois Bell Telephone Company, a Corporation, filed its complaint in the Court of Claims in which it seeks judgment of $35,428.72, representing charges for telephone services rendered up to June 30, 1965 to various departments of the State of Illinois pursuant to tariff rules and regulations of the Illinois Commerce Commission, which form a contract between the Telephone Company and the State of Illinois.

A Departmental Report was filed, which stated: “The debt is fair and just, is due and owing, and should be paid to the Company for the services rendered.”

Subsequently a written stipulation was entered into by claimant and respondent, which states as follows:

“The report of the Office of the Secretary of State to the Illinois Attorney General, dated April 7, 1967, (a copy of which is attached hereto, marked exhibit A, and by this reference incorporated herein, and made a part hereof) shall be admitted into evidence in this proceeding without objection by either party.
“No other oral or written evidence will be introduced by either party.
“The Comissioner to whom this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $35,428.72.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, an Illinois Corporation vs. State of Illinois, case No. 5261, opinion filed February 24, 1966. It appears that all qualifications for an award have been met in the instant case.

Claimant, Illinois Bell Telephone Company, a Corporation, is, therefore, hereby awarded the sum of $35,428.72.


text:
    (No. 5372
    Frank Korwin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1967.

    Zelezinski and Brandenburg, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

On December 1, 1966, claimant, Frank Korwin, filed a claim seeking a refund of a Responsibility Security Bond deposited with the Secretary of State of the State of Illinois, as required by Sec. 7-204 of the Motor Vehicle laws of the State of Illinois.

A written stipulation was entered into by claimant and respondent, which states as follows:

“That claimant, Frank Korwin, deposited with the office of the Secretary of State of the State of Illinois, in accordance with Chap. 95%, Sec. 7-204, Ill. Rev. Stats., (1965) as amended, the sum of $500.00.
“That on July 6, 1966, claimant was entitled to a refund of said sum (Ill. Rev. Stats., Chap. 95%, Sec. 7-503), and was so notified by the office of the Secretary of State of the State of Illinois.
“That, as a result of the failure of claimant to file claim for refund, the funds were transferred to the General Revenue Fund on September 8, 1966.
“That claimant continues to be the sole person interested in this claim; that no assignment thereof has occurred; and, that claimant is the sole owner of such claim.
“That upon the foregoing agreed case filed herein the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

Sec. 7-503 of Chap. 951/2, Ill. Rev. Stats., provides that any person having a legal claim against such deposit may enforce it by appropriate proceedings in the Court of Claims. The Court is of the opinion that claimant has complied with the statute, and is justly entitled to a refund.

An award is accordingly made by this Court to claimant, Frank Korwin, in the amount of $500.00.


text:
    (No. 5376
    Lammert and Mann Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1967.

      Tenney, Bentley, Guthrie, Askow and Howell, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant seeks to recover from respondent the sum of $554.30 for installation of two Minneapolis Honeywell R4127 programmers and cabinets furnished to the State of Illinois, Department of Public Works and Buildings, at the State Highway Garage at 159th Street and Crawford Avenue, Harvey, Illinois.

A stipulation of facts by and between claimant and respondent was filed herein on March 20, 1967, which states as follows:

“That claimant, Lammert and Mann Company, had furnished and installed two Minneapolis Honeywell R4127 programmers and cabinets to respondent, State of Illinois, Department of Public Works and Buildings, at the State Highway Garage at 159th Street and Crawford Avenue in Harvey, Illinois.
“That the items so furnished and installed were installed at the request of the State Architects of the State of Illinois, acting under proper authority.
“That the reasonable value of the labor and material furnished was $554.30.
“That claimant had rendered an invoice on May 20, 1965 to the proper agency of the State of Illinois, but that the invoice so rendered had arrived late, and was not paid out of appropriations of the 73rd biennium, which had expired on September 30, 1965.
“That claimant continues to be the sole organization interested in this claim; that no assignment thereof had occurred; that claimant is the sole owner of the claim.
“That upon the foregoing agreed case filed herein, the Court shall decide thereon and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

It appears to the Court that this is a contract for the furnishing of materials and services; that the contract was properly entered into; that services have been satisfactorily performed; that the programmers were properly installed in accordance with the order of the Department of Public Works and Buildings; and, that proper charges were made therefor.

It further appears that the appropriations for payment of the same had lapsed prior to the presentment of the invoice. Our Court has repeatedly held that it would enter an award for the amount due under such circumstances.

Claimant is hereby awarded the sum of $554.30.


text:
    (No. 5396
    Leonard Kelly, Sheriff, Fayette County, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1967.

    Leonard Kelly, Sheriff, Fayette County, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Leonard Kelly, Sheriff, Fayette County, seeks reimbursement in the amount of $485.20, representing fees due for conveying prisoners to the Illinois State Penitentiary. A Departmental Report was filed herein, which stated that the vouchers and other documents submitted herein in the amount of $485.20 would have been approved for payment by the Department of Public Safety except for the fact that the appropriation had lapsed.

Subsequently the parties entered into a stipulation as follows:

“The report of the Department of Public Safety to the Attorney General of the State of Illinois, dated March 23, 1967, (a copy of which is attached hereto, marked exhibit “A”, and by this reference incorporated herein, and made a part hereof) shall be admitted into evidence in this proceeding without objection by either party.
“No other or written evidence will be introduced by either party.
“The Commissioner to whom this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $485.20.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

The 1965 Ill. Rev. Stats., Chap. 53, Sec. 37, provides in part as follows:

“For conveying persons to the penitentiary, reformatories, Illinois State Training School for Boys, Illinois State Training School for Girls, Illinois Youth Commission and Reception Center, the following fees payable out of the State Treasury: For each person who is conveyed 20 cents per mile in going only to the penitentiary, reformatory, Illinois State Training School for Boys, Illinois State Training School for Girls, Illinois Youth Commission and Reception Center, from the place of conviction.”

Claimant, Leonard Kelly, Sheriff of Fayette County, Illinois, is hereby awarded the sum of $485.20.


text:
    (No. 5128
    William H. Sullivan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1967.

    Michael F. Ryan and Richard F. McPartlin, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant seeks recovery of $3,440.00 in back salary, which is allegedly due and owing to him for a period of eight months, and which has not been paid to him because of lapsed appropriations.

There is no dispute as to the facts in this case. Claimant, William H. Sullivan, was appointed to the position of Institution Fire Chief at the Chicago State Hospital on January 11, 1952. He performed his duties, and received his salary until May 22, 1958, on which date he was suspended from his position. After a hearing before the Civil Service Commission, he was ordered discharged.

Thereafter, claimant initiated Certiorari proceedings for a review of the decision of the Civil Service Commission in the Circuit Court, which culminated in the judgment of the Appellate Court of Illinois, First District, in the cause entitled William H. Sullivan vs. Maude Myers, et al., 32 Ill. App. 2d 454, reversing the judgment of the trial court, which had upheld the discharge order of said Commission. No further appeal was taken, and, on January 3, 1962, pursuant to the opinion of the Appellate Court, claimant was reinstated and restored to duty as Institution Fire Chief at the Chicago State Hospital.

From the evidence it appears that claimant was unable to obtain employment for the months of July, August, September and December of 1960, and for the months of January, February, March and April, 1961. It is the claimants contention that for these eight months he is entitled to receive back salary from respondent because of his illegal discharge from his position with the State of Illinois. For all other months of his suspension claimant was employed at a monthly salary that equaled or exceeded his monthly rate of pay with the State of Illinois. The evidence also discloses that claimant was diligent in obtaining employment and in mitigating damages.

This Court has long held that, where a Civil Service employee is illegally prevented from performing his duties, and is subsequently reinstated to his position by a court of competent jurisdiction, he is entitled to the salary attached to said office for the period of his illegal removal, but that he must do all in his power to mitigate damages. Schneider vs. State of Illinois, 22 C.C.R. 453; Poynter vs. State of Illinois, 21 C.C.R. 393; Smith vs. State of Illinois, 20 C.C.R. 202; and Cordes vs. State of Illinois, 24 C.C.R. 491.

There is no evidence of failure to mitigate damages for the period involved in the instant case. Claimant did obtain employment for thirty-three months, and we are of the opinion that he is entitled to be compensated for salary for the eight months of his illegal suspension at the rate of $400.00 per month.

Claimant is hereby awarded the sum of $3,200.00.


text:
    (No. 5178
    Norris W. Anderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1967.

    Petition of Respondent for Rehearing denied May 9, 1967.
    Smith and Penniman, Attorneys for Claimant.
    William G. Clark, Attorney General; Philip J. Rook, Assistant Attorney General, for Respondent.
   Dove, J.

Norris W. Anderson filed his claim in this Court on August 31, 1964 pursuant to Chap. 37, Secs. 439.8 and 439.8D, which provides in part as follows:

“The Court shall have jurisdiction to hear and determine the following matters:
“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 five years or less, not more than $15,000.00; . . .”

It appears from the evidence that claimant was indicted and tried for burglary by a jury in the Circuit Court of Winnebago County. He was found guilty, and was sentenced to the penitentiary for a term of not less than five nor 'more than twenty years.

It further appears that on the night of March 10, 1960 a bakery in Bockford was forcibly entered through the rear door, and approximately $20.00 in half dollars, quarters, dimes, nickels and pennies were taken from the cash register. No direct evidence was produced linking claimant with the burglary. Circumstantial evidence upon which the conviction was obtained follows:

Claimant, unemployed and" on relief, lived in a hotel near the bakery, and frequented a restaurant 75 feet from the bakery and a tavern some 50 feet away. He spent $6.00 to $9.00 in change at the tavern between 9:00 P.M. and 1:00 A.M. on the night of the burglary, and the following morning exchanged $13.00 in change for paper money at the restaurant. He had two conversations with a friend, Schubbe, who worked at the restaurant, in which claimant asked if he knew where any money was kept, which they could get.

Claimant explained his affluence as a gift of $10.00 from his father, a loan of $2.00 from the wife of the restaurant owner, and the winning of $12.00 in silver during the last pot of a poker game in a hotel. The same explanation of poker winnings was given to three different people, including a police officer. The gift and loan were certified by the donor and lender, respectively. About one month after the incident, claimant was again picked up by two Bockford police officers, and questioned about the poker game. He admitted that it was in a room at the Lawrence Hotel, but refused to divulge the names of the other participants. Claimant’s testimony concerning the poker game as a source of the funds was not contradicted or impeached, nor did the police check claimant’s story that the game was the source of the coins. (People vs. Anderson, 30 Ill. 2d 413.)

Claimant was thereafter incarcerated in the Illinois State Penitentiary until April 10, 1964. On April 8, 1964, after the opinion of the Illinois Supreme Court had been filed reversing the conviction of claimant, an order was entered in the Circuit Court of Winnebago County recalling the mittimus previously issued, and on April 10, 1964 claimant was released from the penitentiary.

The Supreme Court in its opinion says:

“It is basic, however, that, if after due consideration, we are of the opinion that defendant’s guilt has not been established beyond a reasonable doubt, it is our duty to reverse. (People vs. Jefferson, 24 Ill. 2d 398; People vs. Butler, 28 Ill. 2d 88). This record leaves such a doubt, and the conviction is reversed.”

There were only two witnesses who testified in this case. Claimant, of course, testified on his own behalf, and Mauritz Johnson, one of the investigating police officers, testified for respondent. His testimony did not rebut that of claimant, but corroborated it on several points. The testimony of claimant is clear and unambiguous; it has not been contradicted; it is probable and logical; and, we are of the opinion that claimant’s testimony should not be disregarded. (Kelly vs. Jones, 290 Ill. 375.) Claimant’s unrebutted testimony cannot be rejected, and constitutes the preponderance of the evidence in the record before this Court. Claimant has shown by all the evidence a prima facie case, proving his innocence of the crime for which he was unjustly imprisoned. Respondent has not presented any evidence to overcome claimant’s prima facie case, and it is our opinion that claimant has proven his innocence by a preponderance of the evidence.

Claimant seeks an allowance for attorney’s fees in addition to the award for wrongful imprisonment. Chapter 37, Section 439.8D reads in part as follows:

“The Court shall fix attorney’s fees not to exceed 25% of the award granted.”

This Court is of the opinion that the legislature intended that attorney’s fees be payable from the award granted, and not in addition thereto. It is the declared responsibility of this Court to fix the amount of attorney’s fees not to exceed 25% of the award granted.

We hereby award claimant the sum of $12,000.00, and fix attorney’s fees at 25% of the award granted.


text:
    (No. 5194
    Commissioners of Drainage District No. 2 in Pleasant View Township, Macon County and State of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1967.

    Vail, Mills, Armstrong, Winters and Prince, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

This claim arises out of the action of the Commissioners of Drainage District No. 2 in Pleasant View Township, Macon County, Illinois, to collect an assessment of $200.00, which was levied in 1961 against the right-of-way of Illinois State Bond Issue Route No. 48 located within the boundaries of the Drainage District.

The question presented to this Court for determination is whether State highways are exempt from drainage assessments. Respondent alleges that levy of assessments against State property is precluded by the Revenue Act, (Par. 500.5, Chap. 120, Ill. Rev. Stats.) which provides that “all property of every kind belonging to the State of Illinois” shall be exempt from taxation.

The Supreme Court of Illinois has long held that the exemptions of the Revenue Act have no effect whatsoever on the question of special assessments. In City of Mt. Vernon vs. People, 147 Ill. 359, 35 N.E. 533, the City attempted to assess the State for paving a portion of the street upon which the State Supreme Court building was located. The Court specifically rejected the argument that the Revenue Act applied, and stated:

“We have held that exemption from taxation does not exémpt from special assessment or special taxation of contiguous property.” (County of McLean vs. City of Bloomington, 106 Ill. 209; I.C.R.R. Co. vs. City of Decatur, 126, Ill. 92, 18 N.E. 315; County of Adams vs. City of Quincy, 130 Ill. 566.)

However, the Court went on to hold that a special assessment could not be levied against the State, since See. 26, Art. IV of the Constitution provides: “The State of Illinois shall never be made a defendant in any court of law or equity”, and that the nature of a tax assessment proceeding would necessarily be one in which the State is called into court to defend a proceeding against its property.

In the ease of County of Adams vs. City of Quincy, 130 Ill. 566, 22 N.E. 624, the court stated that the general rule in Illinois is that special assessments for local improvements are not taxes in the strict sense of the term, and that property held for a public use is not exempt from such assessment, although exempt from taxation for general purposes. In that case, although there was no statute expressly authorizing the City to levy a special assessment on County property, it was nevertheless held that the property owned by the County be assessed its proportionate share of the cost of the proposed improvement.

The Illinois cases are in accord with the majority of jurisdictions, which distinguish taxes from' assessments. Taxes are defined as public burdens imposed generally on the inhabitants of the whole State, or some civil division thereof, without reference to particular benefits to particular individuals or property. Assessments have reference to imposition for improvements, which are specially beneficial to particular individuals or property, and are proposed in proportion to the particular benefits supposed to be conferred. (90 A.L.R. 1137.)

The pertinent portions of the Constitution and the Drainage Code include the following:

(Sec. 31, Art. IV, Illinois Constitution.)
“The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees for agricultural, sanitary or mining purposs, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State by special assessments upon the property benefited thereby.” (Emphasis supplied.)
(Sec. 5-2, Drainage Code.)
“Upon the organization of the district, the commissioners shall proceed to make out their assessment roll of benefits, damages and compensation, and they shall include therein all lands, lots, railroads, public highways, streets and alleys, and other property within the district, which, in their opinion, will be benefited, taken or damaged by the proposed work.” (Emphasis supplied.)
(Sec. 5-3, Drainage Code.)
“.......... (2) The commissioners shall also include in their assessment roll (a) the names of the highway authorities having jurisdiction over the public highways within the district affected by the proposed work, and the names of the municipal corporations or quasi municipal corporations owning or having jurisdiction over streets and alleys and other municipally owned property or property held for public use within the district and affected by the proposed work; (b) a general description of all such public highways, streets and alleys, and municipally owned or controlled property; (c) the amount of benefits, if any, levied against such highways, streets and alleys, and municipally owned or controlled property; (d) the amount of annual benefits, if any, levied against such property; (e) the amount of damages allowed to land not taken, if any, and, (f) the amount of compensation allowed for land taken, if any.” (Emphasis supplied.)
(Sec. 3-6, Drainage Code.)
“.......... If any public highway or public street or alley is located within the proposed district and may be subject to assessment ............”
(Sec. 4-27, Drainage Code.)
‘‘With respect to the State of Illinois, the Federal Government, or any of their agencies, the commissioners, subject to the approval of the court, shall have the power and authority: (a) To levy and collect assessments, as provided in this Act, when such assessments become necessary to avail the district of financial assistance from any appropriation made by the Government of the United States, the State of Illinois, or any of their agencies.”

A general rule in the interpretation of statutes limiting rights and interests is to construe them so as not to embrace the sovereign power or government unless the same is expressly named therein. The intent that the property of the State shall be subject to assessment must be clearly expressed. (Sec. 87, 48 Am. Jur., Special and Local Assessments.)

Whether the provisions in the Drainage Code meet this test may be determined by an examination of cases where a levy of special assessment on a sovereign power was attempted. One of the earliest cases in point is that of Fagan, et al vs. City of Chicago, 84 Ill. 227, which was later cited in the Mt. Vernon opinion discussed above. The Illinois Supreme Court in Fagan held that the City of Chicago had no power to levy a special assessment for paving a street upon the block of ground owned by the United States Government, and used with the building thereon for governmental purposes.

The court stated:

“A municipal corporation has no power to assess or exact from the State or the general government any sum for benefits conferred. The power to levy taxes or impose assessments for benefits can only be exercised on the governed and not on the governing power, whether State or Federal ............ it is a familiar rule of interpretation that a law, which refers to inferiors, is never applied to superiors. Again, all grants are taken most favorably to the government or the public. Hence, when the power was granted to these municipal governments to make such assessments, it would not be a favorable construction to the government to hold that the assessment might be imposed on government property.”

In the case of City of Springfield vs. State of Illinois, 5 C.C.R. 246, the State legislature made an appropriation to pay the principal of the assessment on State property for the paving of streets by the City. The City ordinance for the improvements provided that the assessments be paid in yearly installments, the deferred payments to bear interest. The Court held that, where a municipal corporation under a special assessment ordinance makes an improvement, and the property of State is benefited thereby, the State, if it has made an appropriation, should respond as an individual citizen and property owner and pay interest on the assessments up to the time it offered to pay the principal.

However, in the case of Indian Refining Company vs. State of Illinois, 5 C.C.R. 250, which was decided on the same day, the Court flatly stated that the property of the State is not subject to taxation or special assessment for a local improvement: “The. Illinois and Michigan canal belongs to the State, and the City had no power to assess any of the canal strip for street improvements.”

Although sections of the Drainage Code, cited above, refer to “public highways”, property of the State and Federal Governments are clearly distinguished by being set apart in Sec. 4-27, which empowers the drainage commissioners to levy and collect assessments with respect to the State or Federal Governments only when such assessments become necessary to avail the district of financial assistance from any appropriation made by the Government of the United States, the State of Illinois, or any of their agencies. It is our opinion that an appropriation must be made before an assessment may be levied against the State of Illinois.

In the instant case an appropriation for such assessment was not made by the State Government. Therefore, the claim is hereby denied.


author: Pezman, J.

text:
    (No. 5201
    Vernon Gan and Cleta Gan, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1967.

    Chapman and Strawn, Attorneys for Claimants.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

This is an action brought by Vernon Gan and Cleta Gan, owners of certain property known as 1026-B Roberts, located in Sunny Dell Acres, a subdivision of Madison County, Illinois. The one story ranch type home with basement and attached garage was built by claimants on the premises in question, and occupied by them on June 28, 1962. At that time the property was a corner lot, and fronted on Roberts Avenue. It was bounded on the north by Roseann Terrace. There was a ditch approximately 18 x 20 inches deep running along both sides of Roseann Terrace, and these ditches sufficiently carried away drainage and rain water until the time they were removed by the State of Illinois, Division of Highways, in the construction of FAI No. 270. The right-of-way for FAI No. 270 was procured in 1959, and was adjacent to and just north of the property subsequently purchased by claimants. The right-of-way deed contained the usual release from liability and damages to remaining property caused by the use, construction or opening up of the highway.

Respondent in the summer of 1963, while constructing FAI No. 270, caused the street known as Roseann Terrace to be plowed up and eliminated, along with the ditches on either side of said street. The area where the street and ditches had formerly been was left on a grade approximately even with that of claimants’ property. Subsequently after the construction of Interstate No. 270, claimants’ property was approximately 22 feet 9 inches below the grade of the highway. In August of 1963, the backyard of claimants’ property was flooded to a depth of approximately 3 feet with the water coming up to within a few inches of the house, and remaining there for some 15 days. The testimony indicated that the water ran off of the highway right-of-way, and accumulated on claimants ’ property where it had no way to run off because of the failure of the Division of Highways to provide drainage for the same.

Claimants contend in two counts, as follows: Count I. That, because of the construction of the highway, known as FAI No. 270, they suffered a depreciation of the value of their property in the sum of $9,000.00; Count II. That, because of the construction of said highway, the personal and property rights of claimants were violated, as follows:

“The light and air coming naturally to their property was obstructed because the highway was constructed about twenty feet higher in elevation.
“When it rains, the water from said highway now drains onto plaintiffs’ land, and causes the same to be flooded and washed away from time to time.
“That plaintiffs’ property now becomes flooded in times of heavy rain because the drainage ditch, which formerly served the property, was removed by the defendant, and no adequate replacement was installed.”

Respondent contends that claimants failed to sustain the burden of proving any negligence on the part of respondent, and further argues that claimants’ expenditures to correct the condition that existed could not be allowed because receipted bills were not introduced in evidence as being paid or correct.

The only testimony produced on behalf of claimants was the testimony of Vernon Gan, one of the claimants. No other witnesses were produced for respondent, and the entire matter is before this Court on the sole and only testimony of one of the claimants.

This Court holds against the claimants on Count I denying the right of said individuals to seek redress in this Court for depreciation of value of their property because of the construction of a highway pursuant to a right-of-way grant previously given by the predecessors in title of the claimants. The Court holds that the release contained in respondent’s exhibit No. 1 (right-of-way grant) would effectively bar any right of the claimants to compensation for depreciation of value as the result of the construction of the highway. Claimants, as purchasers of said property in 1962, purchased subject to said right-of-way grant, and, therefore, had full and complete knowledge when they were building their home that the State was contemplating the construction of a highway adjacent to their property. If the claimants were not aware of the existence of this grant, then they are charged by this Court with the duty to have been aware of the granting of the right-of-way for the instrument of conveyance to the State of Illinois was dated the 18th day of September, 1959, and also was of record in book No. 1972 at page 587 in the office of the Recorder of Deeds of Madison County, Illinois.

Claimants seek just compensation for the flooding of their property as caused by the negligence of respondent in the construction of the highway. Vernon Gan testified that it was necessary after the flooding to haul 105 loads of dirt, and have the same spread upon his yard in order to have the level of the yard high enough to avoid future floodings. He also testified that he paid $35.00 for spreading the dirt, and $5.00 per load for bringing the dirt to his property, as well as the sum of $50.00 for cleaning out his septic tank as a result of damages caused by the flooding waters.

The evidence in this matter indicates that Vernon Gan spent five days of his own labor in endeavoring to correct the level of his yard. Respondent made no objections to the testimony of claimant as to those expenses incurred, and the labor performed at the time of the hearing.

This Court holds that claimants are entitled to just compensation for consequential damages actually sustained subsequent to the taking of the property under the Eminent Domain Act, and after the construction of the highway. (Tenboer vs. State of Illinois, 21 C.C.R. 359.)

Claimants are, therefore, awarded the sum of $660.00.


text:
    (No. 5226
    P. H. Broughton and Sons, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1967.

    Howarth, Howarth and Walbaum, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney, for Respondent.
   Pezman, J.

This is a claim by P. H. Broughton & Sons, Inc., a Corporation, against the State of Illinois for $17,822.00 allegedly remaining due to claimant from respondent for grading, blacktopping and maintenance work done by claimant at the State Fairgrounds, Springfield, Illinois, during the period of May 18, 1964 through August 10, 1964.

The grading, blacktopping and maintenance work performed by claimant was performed at twenty-four individual job sites on the State Fairgrounds pursuant to twenty-four individual written proposals prepared by claimant. Each proposal covers a separate job site. Each proposal is for an amount less than $1,500.00. The twenty-four proposals total $30,662.00. Claimant received payment on ten (10) of the proposals totaling $12,840.00. Claimant has never received payment on the remaining fourteen (14) proposals.

The evidence in this case indicates that each of the twenty-four proposals was prepared by Mrs. Irma Broughton, claimant’s bookkeeper, within a few days after claimant’s job estimator, William Broughton, had gone to the State Fairgrounds at the request of either Franklin Bust, Director of the State Fair, or his assistant, Louis London, to estimate the cost of a particular job. Bust or London would take William Broughton around to various job sites, and show him the work for which they wished proposals prepared. The necessary data would then be communicated by William Broughton to Irma Broughton, and the proposal prepared. Each proposal was then mailed or delivered to Bust’s office. Thereafter, either Bust or London would advise William Broughton that the quoted price was satisfactory, and direct claimant to commence the work called for by the particular proposal.

Fair Director Bust and Assistant Director London concede that they were authorized to commit respondent for payment for the work performed by claimant. Both Director Bust and Paul Prince, Superintendent of Maintenance, State Fairgrounds, admit that they were aware that claimant was doing the work for which it has not yet been paid. Both Bust and Prince, however, deny that they personally authorized the specific work to be done. Bust claims that he had delegated the authority to London to handle these types of matters. London claims that the unpaid proposals and the work performed pursuant thereto were never discussed with him by either Broughton or Bust, and that he never personally observed any of this work being performed until it was completed. The preponderance of the evidence in this case contradicts London’s testimony that he did not authorize the unpaid portion of the work as distinguished from the work for which claimant has been paid, and his testimony that he did not notice claimant’s men or machinery performing the work called for by the unpaid proposals.

Bespondent raises two defenses: (1) that the unpaid work was not authorized; (2) that it was performed in contravention of statutory requirements. It is the opinion of this Court that the evidence in this case does not support respondent’s defense that the unpaid work was not authorized. The evidence clearly establishes that said work was orally authorized by either Bust ór London, and that Bust, London and Prince were aware at all times that the work was being performed by claimant. The offices of these men are at the Fairgrounds, and the work being performed was essential to the orderly and timely opening and operation of the Illinois State Fair for that year. These officials were directly responsible for maintenance of said Fairgrounds, and could not have been present upon the grounds without being conscious of the work being performed by claimant.

The substance of respondent’s second defense is that the work performed was in violation of the Illinois Purchasing Act, which requires that contracts for repairs, maintenance, remodeling, renovation, or construction involving an expenditure in excess of $1,500.00 be advertised for bids, and awarded to the lowest responsible bidder considering conformity with specifications, terms of delivery, quality and service-ability. It is the contention of respondent that claimant made many separate agreements, each for less than $1,500.00, to circumvent the requirements of the Illinois Purchasing Act. Respondent directs the Court’s attention to Par. 132.10 of the Act, which declares that any contract entered into for expenditure of State funds, which violates the Act, is void and of no effect.

The evidence in this case indicates that there was a proposal made for each individual project; that each proposal was submitted to respondent before that project was commenced, and that work was not commenced on each project or proposal until claimant was advised by respondent that its proposal had been accepted.

Claimant contends that the case of F. R. Inskip, et al, vs. The Board of Trustees of the University of Illinois, 187 N.E. 2d 201, 26 Ill. 2d 501 (1962), is directly in point, and that said case holds that the General Assembly did not intend to designate in the Illinois Purchasing Act the principle of competitive bidding as the only accepted economical procurement practice. Respondent contends that the Inskip case is not in point, and should have no bearing on this matter.

The Illinois Supreme Court in the Inskip case stated that:

“We further hold that the Purchasing Act is not violated when a State Agency, in good faith and without intent to evade or avoid the provisions of said act, determines that it is more economical to purchase equipment and materials in individual units of not more than $1,500.00 in cost, and does so, without regard to the total of such purchases, so long as such purchases are charged to the proper appropriation.”

It is the opinion of this Court that, while the fact situation in the Inskip case differs from the case at bar, the language used by the Court in the Inskip case and quoted above is sufficiently broad to apply to differing situations including the case at bar.

The Illinois State Fairgrounds is a vast and complex facility, which requires a large amount of maintenance arid repair at various times during the year. The evidence indicates that it was the policy of respondent to take care of this maintenance and repair as the need for specific work developed or became apparent, instead of attempting to prepare detailed plans and specifications for an annual competitive letting of the work. A competitive bid letting of a season’s work would have been very difficult or impossible, because the work was composed primarily of small jobs of maintenance, blacktopping parking spaces, seal-coating and grading roads, which were observed and spot-checked from time to time as winter damage and spring thaws made the need for the work to be done apparent.

Respondent offered no proof whatever that claimant wilfully sought to evade the provisions of the Illinois Purchasing Act. Respondent offered no proof that claimant and Rust or London entered into any contracts with the intention of splitting up a single job or project into several jobs or items of cost in order to fall within the $1,500.00 limit, and thereby avoid the requirements of the Illinois Purchasing Act. Each of the proposals in question was for work at a separate site at various times within the large complex comprising the State Fairgrounds, and it is our opinion that each proposal properly constituted a separate job, project or contract, and that each proposal did not constitute a portion of one job or project of maintenance and repair as contended by respondent.

In the absence of such proof, it is the opinion of this Court that claimant did not violate the provisions of the Illinois Purchasing Act; that claimant entered into twenty-four separate contracts with respondent; that by reason of the fact that each was for less than $1,500.00 the Illinois Purchasing Act did not apply to said contracts, and, that claimant is, therefore, entitled to payment on the remaining fourteen proposals, which are unpaid, in the sum of $17,822.00.

Claimant is awarded the sum of $17,822.00.


text:
    (No. 5384
    Davidson Division, Fairchild Camera and Instrument Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1967.

    Stanley Winston, Attorney for Claimant.

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

Claimant, Davidson Division, Fairchild Camera and Instrument Corporation, filed its complaint in the Court of Claims on January 26, 1967 in which it seeks the sum of $200.00 for services and parts furnished to the Office of the Secretary of State.

A Departmental Report was filed, which stated in part “The amount of $200.00 is correct, and a debt due and owing to claimant for services, and should be paid.”

Subsequently a written stipulation was entered into by claimant and respondent, as follows:

“The report of the Secretary of State to the Attorney General of the State of Illinois, dated April 11, 1967, (a copy of which is attached hereto, marked exhibit A, and by this reference incorporated herein, and made a part hereof) shall be admitted into evidence in this proceeding without objection by either party.
“No other or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $200.00.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, an Illinois Corporation vs. State of Illinois, Case No. 5261, opinion filed February 24,1966. It appears that all qualifications for an award have been met in the instant case.

Claimant, Davidson Division of Fairchild Camera and Instrument Corporation, is, therefore, hereby awarded the sum of $200.00.


text:
    (No. 5078
    Fruin-Colnon Contracting Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1967.

    John E. Howarth, Nelson Howarth and Raymond L. Terrell, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee. D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

This cause of action arises out of two contracts between claimant, Fruin-Colnon Contracting Company, a Corporation, and respondent, State of Illinois, by and through its Department of Public Works and Buildings, providing for the construction of a storm sewer system and a pumping station within St. Clair County, Illinois. Both contracts provided that “time is of the essence of this contract. ’'

Both contracts provided in part as follows:

“When a delay occurs due to unforeseen causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to acts of God, acts of public enemy, governmental acts, fires, floods, epidemics, strikes (except those caused by improper acts or omissions of the contractor), extraordinary delay in delivery of materials caused by strikes, lockouts, wrecks, freight, embargoes, governmental acts, or acts of God, the time of completion shall be extended in whatever amount is determined by the Department to be equitable.
“Promptly after each unforeseen delay is filed, the Department shall give to the contractor written notice of an extension to contract date . . .”

Each contract provided for liquidated damages in the sum of $750.00 for each day the completion of the contract extended past the agreed date of completion plus any extensions of time granted by the Department.

On July 14, 1959, respondent awarded the sewer contract to claimant, which was to be completed by claimant within 90 days. After the receipt of the decision of respondent to award the sewer contract, claimant began to mobilize its equipment-and personnel to. begin work on the project. On May 22,1959, respondent awarded the pumping station contract to claimant. The pumping station contract contained a completion date of February 15, 1960.

On August 1, 1959, an area-wide strike began preventing any work from being done on the sewer project or the pumping station project. The strike lasted for 48 days, or until September 17,1959. The evidence shows that the period during which the strike ensued was ideal weather for construction. Because of the strike, work on the sewer project and pumping station project was pushed into winter and the accompanying had weather. It was undisputed by respondent that construction work of this nature is slowed down by winter weather because there are fewer working days during the winter months, and also because the worker's efficiency is greatly impaired because of the weather as compared to summer months.

On October 7, 1959, claimant made a written request, to respondent for an extension of the completion date on both contracts of 48 days directly attributable to the strike, and 20 additional days as being indirectly attributable to the strike by reason of being pushed into winter weather. Respondent did not reply to this request until December 19, 1959, some 70 days after the request was made. During this period from October 7, 1959 to December 19, 1959, the District Engineer of the State of Illinois, E. W. Riefler, recommended to his superior that time in addition to the 48 days directly attributable to the strike be granted to claimant by reason of the fact that the strike pushed the work into winter weather, and recommended that an additional 10 day extension be granted for that reason. Mr. Norris, the Chief Highway Engineer, agreed with the recommendation of the District Engineer, and, on October 27, 1959, requested C. S. Monier, Division Engineer of the Bureau of Public Roads of the United States, which was involved by reason of federal financing on these projects, to approve the extension of an additional 10 days. Copies of these letters recommending an extension of 48 days directly attributable to the strike and an additional 10 days indirectly attributable to the strike were sent to and received by claimant. On November 13, 1959, the Bureau of Public Roads declined to concur with the request for an additional 10 day extension;

On November 15, 1959,. claimant wrote to respondent stating that they had not yet received a reply to their request for a 68 day extension, and that the failure of respondent to reply was making it difficult if not impossible to plan and program the work. On December 10, 1959, claimant was notified that an extension of 48 days would be granted on both projects, but that the request for the additional 20 days was refused on both projects. Respondent admits that, if claimant had been notified promptly that its request for an additional 20 days extension would be denied, claimant could have put additional men and equipment on the job in order to finish in time.

The record in this case indicates that there were other extensions of time requested on both projects for various reasons. Some of these were granted, while some were refused. During the month of April, 1960, it was determined that Union Electric Company, the power company providing power for the operation of the pumping station, could not supply the type of meter provided for in the specifications prepared by respondent. Respondent was requested to revise its specifications so that Union Electric Company could use the metering equipment, which they had on hand, and which they insisted must be used. Although the request was made in apt time, respondent delayed in making the decision to revise the specifications so that claimant was delayed 10 days in testing the pumping station equipment. Claimant requested an additional 10 day extension for time lost due to the failure of Union Electric Company to provide the specified metering devices, and the failure on the part of respondent to promptly revise its specifications when notified of the metering problem.

During the latter part of September, 1959, while claimant was engaged in tunneling in connection with the storm sewer project, claimant requested respondent to notify and cau.se the Union Electric Company to remove and relocate certain power lines, which were directly in the path of the storm sewers. Other requests had been made by claimant directly to Union Electric Company to relocate these power lines as early as July, 1959: Claimant had suggested to Union Electric Company that it move the power lines during the period of the strike so that claimant could resume work immediately upon termination of the strike. The power lines were not relocated by the Union Electric Company until September 28, 1959, thereby delaying work by claimant on the storm sewer project for some 10 calendar days.

After giving credit for the extensions granted, respondent set May 1, 1960 as the completion date for the pumping station contract, and December 2, 1959 as the completion date for the storm sewer project. The pumping station project was completed and accepted on May 11, 1960, 10 days late, and the storm sewer project was accepted on December 14, 1959, 12 days late. Respondent is withholding from contract payments the sums of $7,500.00 as liquidated damages on the pumping station project, and $9,000.00 as liquidated damages on the storm sewer project.

The Court will first consider claimant’s contention that it was entitled to an extension of 68 days on both contracts due to the 48 day strike, which halted all work on both projects. The contracts in question provided that, when a delay occurs due to unforeseen causes beyond control of contractor, and without the fault or negligence of the contractor, including strikes, the time of completion shall be extended in whatever amount is determined by the Department to be equitable. The portion of the requested extension of 68 days, which is disputed, is the request of 20 additional days by claimant for delay of both projects by reason of the fact that work on both projects was pushed into the winter months. Respondent’s witnesses, including respondent’s project engineer, testified that there would be an additional delay due to the fact that the strike pushed the work on both projects into the winter months. It appears to this Court that the question to be determined is not whether claimant was entitled to an extension in excess of the 48 days of the strike, but rather how much of an extension in excess of the 48 days was claimant entitled to under the provisions of the two contracts. It is the opinion of this Court that respondent’s agents, E. W. Riefler, District Engineer, and Mr. Norris, Chief Highway Engineer, have answered this question. Mr. Riefler recommended to his superior, Mr. Norris, an additional extension of 10 days in addition to the 48 day extension. Mr. Norris apparently concurred in this recommendation, and in a letter to C. S. Monier, Division Engineer of the Bureau of Public Roads of the United States, requested the assent of the Bureau of Public Roads to a total extension of 58 days due to the strike. When the Bureau of Public Roads declined to assent to an extension in excess of 48 days, claimant was notified by respondent that an extension of only 48 days would be granted. It is the opinion of this Court that an extension of 58 days due to the strike should have been granted claimant on both projects under the provisions of both contracts. The Bureau of Public Roads was not a party to the contract between claimant and respondent, and a determination by the Bureau that claimant should not be granted any extension in excess of 48 days should not control the decision of respondent, as it clearly did in this case.

Testimony in this case indicated that claimant made a written request to respondent on October 7, 1959 for an extension of 68 days due to the strike. Respondent did not reply to claimant concerning the extension until December 19, 1959, at which time it granted an extension of only 48 days. During this period claimant received copies of correspondence between respondent’s agents that an extension of 58 days should be granted. The contracts in question provided that promptly after each unforeseen delay is filed the Department shall give to the contractor written notice of an extension to the contract date. It is the opinion of this Court that a reasonable construction to this provision required respondent to give prompt notice of denial of an application for extension. Because of the delay in notifying claimant as to the decision on its request for an extension of 68 days, claimant was put in a quandary as to how to proceed with the projects. If respondent’s decision to allow only a 48 day extension had been promptly communicated to claimant, it could have hired additional men and equipment, and finished the job on time. It is the opinion of this Court that delay on the part of respondent in replying to the request of claimant for a 68 day extension was unfair, inequitable and unconscionable, and that respondent is estopped by reason of the delay occasioned by it to deny claimant an extension of 58 days as it was led to believe would be granted. The decision of this Court that claimant was entitled to an additional 10 day extension will extend the date of completion on the pumping house project to May 11, 1960 so that said project was completed on time, and no liquidated damages are due to respondent from claimant. It is, therefore, unnecessary for the Court to rule on claimant’s, contention that it was entitled to an additional extension of 10 days due to the failure of the Union Electric Company to provide the proper metering devices for the pumping station project, and the delay on the part of respondent in revising its specifications to allow Union Electric Company to use the equipment it insisted upon using.

The Court will now consider claimant’s request for an extension of 10 days on the storm sewer project due to a delay occasioned by Union Electric Company’s failure and refusal to relocate certain power lines in the path of the storm sewer lines. The evidence in this case indicates that proper requests were made to Union Electric to relocate the power lines during the period of the strike, but that said power lines were not relocated until September 28, 1959. The strike ended September 17, 1959. As a result of this delay, claimant lost 10 calendar days on the storm sewer project. Under the terms of the contract the only duties imposed upon claimant was to cooperate with and coordinate its activities with Union Electric. It appears that claimant made every possible effort to have the power lines relocated so that they would not interfere with progress on the storm sewer project. Claimant had no control over Union Electric Company under the terms of the contract. It is the opinion of this Court that the delay resulting from Union Electric Company’s failure to relocate certain power lines, when requested, was a delay due to unforeseen causes beyond the control and without the fault or negligence of the contractor within the provisions of the storm sewer project contract. The evidence in this case indicates that an extension of only one da;? was granted by respondent for this delay. It appears to the Court that claimant lost a minimum of 6 working days directly attributable to this delay. Therefore, we hold that claimant was entitled to an extension of at least 6 days. The decision of this Court that the completion date of the storm sewer project should be extended an additional 10 days due to the strike and an additional 6 days due to the delay caused by Union Electric’s failure to relocate certain power lines has the effect of extending the completion date on the sewer project to December 17,1959. The storm sewer project was completed and accepted by respondent on December 14, 1959. The Court, therefore, holds that respondent is not entitled to withhold any of the contract payments due claimant for liquidated damages.

This Court feels that claimant is properly entitled to the amounts withheld by respondent as liquidated damages on both the storm sewer and pumping station projects. The record in this case indicates that certain additional sums of money have been withheld under the two contracts as retainage by reason of the fact that claimant has not provided respondent with certain waivers and affidavits as required by respondent. It is the opinion of this Court that all retainage should now be awarded to claimant despite the fact that claimant has not supplied the waivers and affidavits.

The Court has considered the contentions of claimant in relation to its demands for interest arising out of retainage as set forth in Counts II and IV of the complaint, but the Court finds no basis either in statute law or precedent of this Court for the payment of interest upon the retainage. Claimant’s demand for interest, as set forth in Counts II and IV of the complaint, are, therefore, denied.

Under Count I, claimant is hereby awarded the sum of $9,000.00 as and for liquidated damages withheld by respondent under the sewer project contract, and the further sum of $12,824.66, said sum being the retainage admittedly withheld by respondent under the same said sewer project contract. Under Count III, claimant is awarded the sum of $7,500.00, the amount withheld by respondent for liquidated damages under the pumping station contract, and the further sum of $6,576.24, said sum being the amount of retainage admittedly withheld by respondent from claimant under the pumping station contract.


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    (No. 5373
    Jewish Hospital of St. Louis, A Missouri Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1967.

    Librach and Heller and Robert L. Brown, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

On March 30, 1965, one Toby E. Johnson, a ward of the Department of Children and Family Services, was admitted to the Jewish Hospital of St. Louis for treatment. He was hospitalized from said entrance date to and including May 27, 1965. Following his release, a statement for its services was presented by claimant to the Department, but, because of prolonged discussions between the two parties as to disparity in rates, the appropriation from which payment could have been made had lapsed. Thereafter, on December 1, 1966, claimant, Jewish Hospital of St. Louis, a Missouri Corporation, presented its claim for such services in the sum of $4,-400.60 to this Court.

At its regular meeting on January 10, 1967, this matter was referred to Commissioner Godfrey for hearing. On the date set for hearing claimant and respondent, by their respective attorneys, appeared before Commissioner Godfrey, and entered into the following stipulation :

“This cause coming on to be heard before Commissioner Robert F. Godfrey, counsel for claimant, Burton A. Librach, and respondent, Lee Martin, Assistant Attorney General, being present, it is hereby stipulated and agreed that the amount of $4,400.60 prayed for by claimant be reduced to $3,400.60, and that the Court may in its judgment award this reduced amount in payment of this claim.”

A further stipulation was filed in the Court of Claims on March 2, 1967, which in part is as follows:

“In a hearing held before Commissioner Robert Godfrey on February 15, 1967, counsel for claimant, represented by Burton A. Librach, and Lee D. Martin, Assistant Attorney General, counsel for respondent, stipulated and agreed that the amount of $4,400.60 prayed for by claimant be reduced to $3,400.60, the same being a fair and reasonable amount for the services performed by claimant. A copy of such stipulation is attached hereto, marked exhibit A, and by this reference incorporated herein and made a part hereof, and shall be admitted into evidence in this proceeding without objection by either party.
“No other oral or written evidence will be introduced by either party.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $3,400.60.”

From the record it appears that there were funds available in the appropriation of the Department of Children and Family Services for the purpose of administering the provisions of Sec. 5 of “An Act Creating the Department of Children and Family Services”, and that the lapsed balance in that account was sufficient to cover the charge in question.

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

Claimant is hereby awarded the sum of $3,400.60.


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    (No. 4720
    Frances Grochowski and Edward Grochowski, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Opinion on Rehearing filed June 13, 1967.
    Philip H. Corboy, Attorney for Claimants.
    William G. Clark, Attorney General; Samuel J. Doy and Edward A. Warman, Assistant Attorneys General, for Respondent.
   Dove, J.

This action is a claim by Edward Grochowski and Frances Grochowski against the State of Illinois for injuries and damages incurred by them as a result of a collision with an Illinois National Guard truck, which was operated by a member of the Illinois National Guard.

It appears from the record that, on July 23, 1955, Edward Grochowski and his wife, Frances, residents of Chicago, Illinois, were proceeding in a northerly direction on Route No. 12 near the city of Madison, Wisconsin. Edward Grochowski was the owner and operator of the vehicle. Proceeding in the opposite direction were members of the Illinois National Guard, 33rd Division, 131st Regiment., The convoy was returning from summer maneuvers conducted at Camp Ripley, Minnesota. Gene W. Achterberg and George Hoffman were driving a three-quarter ton truck and a two and one-half ton truck, respectively, in the National Guard convoy, which was en route to Chicago, Illinois. Hoffman was directly behind Achterberg.

At a place near Madison, Wisconsin, while the aforesaid convoy was proceeding in a southerly direction, Achterberg slowed his vehicle for a civilian car ahead. Upon doing so the truck driven by Achterberg was struck from behind by the larger truck driven by Hoffman. This sudden bump from behind caused Achterberg to lose control of his vehicle, and consequently pushed his truck into the left lane. Unfortunately, at this moment the Grochowski vehicle was immediately ahead of the two National Guard trucks in the oncoming lane. As a result of Achterberg’s vehicle being pushed into the oncoming lane, a collision occurred between the Grochowski automobile and the National Guard truck driven by Achterberg. Due to the collision, both Mr. and Mrs. Grochowski received multiple physical injuries, as well as property damage to their automobile. There is ample evidence in the record that shows that Edward Grochowski was proceeding in a safe manner, and that no negligence can be attributed to him.

From the above facts, it can hardly be said that the injuries sustained by the Groehowskis were not directly caused by the two National Guard vehicles driven by Achterberg and Hoffman. It is irrelevant to which of the two National Guard drivers the primary negligence is attributed. This is generally the position taken by respondent, State of Illinois. However, respondent is primarily concerned with the damages, more particularly, the evidence concerning actual damages, and also the justification of the credit against claimants ’ alleged damages in an amount equal to the sum, which claimants have obtained from other sources.

As far as actual damages are concerned, both Mr. and Mrs. Grochowski were gainfully employed, and they have adequately proved their loss of earnings. The evidence also sufficiently sets out the medical expenses incurred by both claimants.

Edward Grochowski
Loss of earnings....................... $2,400.00
Medical expenses....................... 114.80
Damages to car........................ 800.00
Total............ $3,314.80
Frances Grochowski
Loss of earnings....................... $ 840.00
Medical expenses....................... 904.85
Total............ $1,744.85

Respondent’s plea for a credit against claimants’ damages in an amount equal to any sums that claimants may have obtained from private sources is without merit. Although it was shown that Edward Grochowski received payments from the Upholsterers’ Union for a period of ten weeks, this should in no way affect the damages recoverable by him. Such payments should be considered as analogous to insurance proceeds, which have been held to be irrelevant to the consideration of damages. Hudson vs. Leverenz, 9 Ill. App. 2d 96, 107 (1956).

It is the conclusion of this Court that Edward Grochowski sustained injuries of some permanence, but which have not disabled him from pursuing his usual occupation. Including loss of earnings, medical care, and damage to vehicle, we believe that an amount of $3,314.80 is a fair award.

We, therefore, allow the claim presented in this case in the following amounts:

To claimant, Edward Grochowski................ $3,314.80
To claimant, Frances Grochowski ............... $1,744.85

Opinion on Rehearing

This action is a claim by Edward Grochowski and Frances Grochowski against the State of Illinois for injuries and damages incurred by them as a result of a collision with an Illinois National Guard truck, which was operated by a member of the Illinois National Guard.

It appears from the record that, on July 23, 1955, Edward Grochowski and his wife, Frances, residents of Chicago, Illinois, were proceeding in a northerly direction on Route No. 12, near the City of Madison, Wisconsin. Edward Grochowski was the owner and operator of the vehicle. Proceeding in the opposite direction were members of the Illinois National Guard, 33rd Division, 131st Regiment. The convoy was returning from summer maneuvers conducted at Camp Ripley, Minnesota. Gene W. Achterberg and George Hoffman were driving, respectively, a three-quarter ton truck and a two and one-half ton truck in the National Guard convoy, which was en route to Chicago, Illinois. Hoffman was directly behind Achterberg.

At a place near Madison, Wisconsin, while the convoy was proceeding in a southerly direction, Achterberg slowed his vehicle for a civilian car ahead. Upon doing so the truck driven by Achterberg was struck from behind by the larger truck driven by Hoffman. This sudden bump from behind caused Achterberg to lose control of his vehicle, and pushed his truck into the left traffic lane. Unfortunately at this moment the Grochowski vehicle was immediately ahead of the two National Guard trucks in the oncoming lane. As a result of Achterberg rs vehicle being pushed into the oncoming lane, a collision occurred between the Grochowski automobile and the National Guard truck driven by Achterberg. Due to the collision, both Mr. and Mrs. Grochowski received multiple physical injuries, as well as property damage to their automobile. There is ample evidence in the record, which shows that Edward Grochowski was proceeding in a safe manner, and that no negligence can be attributed to him.

From the above facts, it appears that the injuries sustained by the Grochowskis were directly caused by the two National Guard vehicles driven by Achterberg and Hoffman.

As far as actual damages are concerned, both Mr. and Mrs. Grochowski were gainfully employed, and they have adequately proved their loss of earnings. The evidence also sufficiently sets out the medical expenses incurred by both claimants:

Edward Grochowski
Loss of earnings....................... $2,400.00
Medical expenses....................... 114.80
Damages to car........................ 800.00
Total............ $3,314.80
Frances Grochowski
Loss of earnings....................... $ 840.00
Medical expenses....................... 904.85
Total............ $1,744.85

Respondent’s plea for a credit against claimants’ damages in an amount equal to any sums that claimants may have obtained from private sources is without merit. Although it was shown that Edward Grochowski received payments from the Upholsterers’ Union for a period of ten weeks, this should in no way affect the damages recoverable by him. Such payments should be considered as analogous to insurance proceeds, which have been held to be irrelevant to the consideration of damages. Hudson vs. Leverenz, 9 Ill. App. 2d 96, 107 (1956).

Direct unrefuted testimony establishes that Frances Grochowski sustained the following injuries: lacerations inside her mouth, above the left eye, on the face and nose, and through the eyebrow. Some of these scars were four inches in length, and have left deep cosmetic scarring. She also sustained a wrenched right wrist, a bruised right knee, and multiple contusions. The evidence further discloses that Edward Grochowski suffered the following injuries: multiple bruises about the face and lower extremities, particularly the right knee and right arm, and that he was unable to pick up his arm higher than his head.

It is the opinion of this Court that claimants are entitled to awards in the following amounts:

To claimant, Edward Grochowski, the sum of $5,314.80
To claimant, Frances Grochowski, the sum of $3,744.85

It is, therefore, ordered that the claim of claimants in the above amounts, be allowed.