author: Perlin, C.J. Perlin, C.J.

text:
    (Nos. 4901 and 4902—Consolidated
    Michael B. Carr, Individually, and as Administrator of the Estate of Michael J. Carr, Deceased; America Fore Insurance Group, Subrogee of Michael B. Carr, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

      Opinion on Rehearing filed June 13, 1967.

    John J. Sullivan and William J. Harte, Attorneys for Claimants.
    William G. Clark, Attorney General; Sheldon K. Rachman, Special Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimants seek recovery for damages arising out of an automobile accident on February 23, 1958, when the motor vehicle, which was owned and operated by Michael B. Carr, one of the claimants in this action, went off the highway, and struck a tree on Route No. 34 about one-half mile east of Oswego in Kendall County, Illinois. Michael J. Carr who was riding as a passenger was killed, and Michael B. Carr, his son, was injured. The America Fore Insurance Company sues as subrogee of Michael B. Carr for the amount paid for damages to the automobile. Michael B. Carr requests the sum of $25,-000.00 in his own behalf, and $25,000.00 as Administrator of the Estate of Michael J. Carr.

From the testimony it appears that claimants were traveling westbound on Route No. 34 about one-half mile east of Oswego in Kendall County, Illinois. The weather was clear, but snow was on the ground, and the temperature was about 30 degrees. The highway was generally dry and free of ice and snow. As the vehicle approached a curve in the highway, just east of Waubansie Creek, the highway was covered with a patch of ice approximately 75 feet long, which extended into both lanes of the road.

Michael B. Carr testified that on the day in question he had left his home in Chicago, Illinois around 6:00 A.M. with his father in order to travel to Princeton, Illinois. He was traveling about 50 to 55 miles per hour about 1,000 yards from the point of the accident. He saw no warning signs, and came upon the curve without warning. As soon as he hit the curve he saw that ice was covering the road, applied his brakes, and then took his foot off the brakes as soon as he reached the ice. He then went off the left side of the road, through a fence, down an embankment, and struck a tree.

He further stated that he had never previously driven on Route No. 34, that there were no other dips or rises in the highway, and that the roadway was dry. The curve in question was below the level of the road, and there was ice covering the entire highway at that point.

Edward and Norman Strope who lived in the farmhouse, which was located in the center of the curve, testified that before the occurrence a sign warned westbound motorists of the approach of the curve, and was normally situated east of the curve. However, according to Norman Strope, a week before the accident the sign had been knocked down by a “snowplow from the State Highway Maintenance Division pushing the snow off to the side of the road/’

Byford Goldman, Jr., testified that on the morning of February 22,1958 he also had an accident on the curve in question, and that, prior to entering the curve, he did not see a warning sign. He stated that there were no cinders on the ice at that time.

Frank Willman, the Deputy Sheriff who investigated the Goldman accident, described the curve as having a patch of ice about 75 feet in length covering both lanes. He observed no cinders or salt on the ice, and reported the condition to the office of the Sheriff.

On the morning of the following day, February 23, 1958, Willman investigated the accident, which involved claimants. He again observed the ice, and noted that there were no cinders or salt on the curve. According to Willman, the curve sign was down at the time of both accidents, although for many years there had been a “curve ahead” sign about 200 feet east of the curve.

Willman further testified that the portion of the highway in question had a tendency to ice up for at least 4 to 5 years before the accident. He stated that he had traveled Route No. 34 for 10 to 15 years, and that, when the curve, is approached from the east going west, the pavement on the curve is not in view because the road turns and drops' down. He also said that the curve had a tendency to freeze when there was no other ice on Route No. 34, because it was lower than the surrounding land, and the snow, which was deposited by the Highway Department, would melt during the day, and run across the highway. It would then freeze at night.

Paul Dwyer, a Deputy Sheriff, testified that in February, 1958, he investigated an accident involving one Phillip Stein. This occurred on the curve approximately three and one-half hours before the Carr accident. He, too, observed the icy condition of the highway.

There was also testimony of several other minor accidents, which occurred on the curve immediately before the Carr accident.

William A. Maier, Sheriff of Kendall County in February, 1958, testified that, immediately after receiving the report of the Goldman accident, and about 24 hours prior to that of the Carrs, he reported the icy condition of the highway, the location, and the fact that an accident had occurred because of the condition to Bill Wheeler, District Supervisor of the State Highway Maintenance Department.

Wheeler testified that he could not say when cinders were last spread on the curve prior to February 23, 1958. He was not sure whether or not the curve sign was standing on February 23, 1958, and stated that the “snowplow could have clipped (the sign).’’ He further stated that it was part of the duties of the road patrol men to spread sand and cinders over the highway.

Claimants submit that the State of Illinois was negligent in that it failed to replace the warning sign, which was knocked down by the maintenance truck of the State a week before the occurrence; it failed to erect a sign warning the traveling public of the icy pavement where the condition had been prevalent at the curve for at least 5 years before the accident in question; it failed to remove the cause of the ice, or to remove the danger by spending sand, salt and cinders; and, that the State is liable for the maintenance of a nuisance.

Before recovery may be granted claimants must prove by a preponderance of the evidence: (1) freedom from contributory negligence; (2) the negligence of respondent; and, (3) the negligence of respondent was the proximate cause of the damage for which recovery is sought.

The State has a duty to exercise ordinary care in maintaining the State highways in a reasonably safe condition. In Bovey vs. State of Illinois, 22 C.C.R. 95, the State was held liable for an accident caused by the icy condition of a bridge flooring where from the evidence it clearly appeared that respondent had knowledge of its tendency to ice more rapidly than other bridges and roadways in the area. The Court stated:

“It was not just the mere existence of ice, which brought about the accident in question, but it was primarily due to the nature of the bridge being subject to a quick freeze at a time when there was no evidence of ice, snow, or extremely cold weather in the general area surrounding the bridge, and even other bridges in the same area were not slippery, thus creating a trap for the unwary traveler.”

The State was also held liable for an accident, which was caused by an unusual accumulation of ice on the highway in the case of Burgener vs. State of Illinois, No. 5061, opinion handed down on September 25, 1964, although cinders and salt had been spread, since it did not remedy the situation, and there were no warning signs. The Court held:

“While the State is not liable for injuries from the natural accumulation of ice and snow (Levy vs. State of Illinois, 22 C.C.R. 694), it may be held liable for failure to warn the traveling public of the dangerous condition of a highway caused by an unusual accumulation of ice, where it has had notice of such condition.”

The instant case presents the fact of an unusual accumulation of ice while the surrounding area was dry. Claimant has proved that respondent was negligent in that it knocked over the only sign warning of the curve, and failed to replace it, although the curve was not visible to oncoming traffic; that respondent had actual notice of a dangerous condition, which had, in fact, existed for at least 4 or 5 years; and, that it had actual notice of the dangerous icy conditions existing on the curve within the 24 hours immediately preceding the accident in question, and failed to remedy the danger by spreading cinders or by placing warning signs in the proper place. There is no evidence that Michael B. Carr, one of the claimants in this matter, was in any way contributorily negligent.

Michael B. Carr has incurred special damages in the amount of $4,747.27, including $1,197.27 for medical expenses, $3,500.00 for loss of income, and $50.00 for charges against him by his insurance carrier for “deductible”.

Claimant sustained fractures of the leg and ankle, and as a result had to undergo surgery. The ankle fracture required the insertion of a metallic screw, which was later removed. He also received a cut on his head, which required suturing. As a result of his ankle injury he still suffers pain, and is limited in doing work, which entails standing or walking for a long period of time. He claims that the accident in question caused an increase in the degree of limp, which he has had in his left leg since childhood as a result of cerebral palsy. He was unable to work for approximately three and one-half months, and could work only part time for an additional two months. His automobile was damaged in the amount of $1,445.00.

The maximum amount allowable “to or for the benefit of any claimant” under the statute in effect in February, 1958 was $7,500.00. Therefore, Michael B. Carr, claimant, and the America Fore Insurance Group, as subrogee for property damage to the automobile owned by Michael B. Carr, may receive awards, the total of which cannot exceed $7,500.00. Accordingly, Michael B. Carr is awarded the sum of $6,055.00, and America Fore Insurance Group is awarded the sum of $1,445.00.

Burial expenses for Michael J. Carr amounted to $1,027.00. Under the Wrongful Death Act, Chap. 70, Par. 2, 111. Rev. Stats., only pecuniary damages may be be recovered for the next of kin. Damage for loss of support is not applicable in the instant case, since the death of Michael J. Carr’s only dependent, Mrs. Michael J. Carr, his wife, occurred before the hearing. Therefore, Michael B. Carr, as Administrator of the Estate of Michael J. Carr, is awarded the sum of $1,027.00.

OPINION ON REHEARING

Perlin, C.J.

Claimants have requested that the Court reconsider the damages heretofore awarded in relation to the claims of Michael B. Carr, and Michael J. Carr, deceased, in the above entitled consolidated cases. In its opinion, the Court stated that the maximum statutory amount allowable under the Court of Claims Act “to or for the benefit of any claimant” was $7,500.00 in February, 1958, the date of the accident in question.

It appears that during the Seventieth General Assembly in 1957, three amendments to the Court of Claims Act were passed, the second being an amendment to raise the statutory limitation to $25,000.00, which was approved on July 9, 1957. The third amendment, approved July 11, 1957, restates the prior limitation of $7,500.00. However, it is the rule that different amendments approved at the same session of the legislature should each be given effect unless clearly inconsistent. (S. Buchsbaum and Company vs. Gordon, 389 Ill. 493, 59 N. E. 832.) It is a further rule that, when different amendments are introduced, each must set forth the whole section as it previously appeared, and that interpretation depends upon legislative intent. We must conclude, therefore, that the Court of Claims Act at the time of this accident in 1958 had been effectively amended to include a statutory limitation of $25,000.00.

Claimants further contend that an award should have been made in favor of the widow of Michael J. Carr, deceased, for loss of support although she herself was deceased at the time of the hearing. It is undisputed that she would have been entitled to the sum of $54.00 per month had she lived.

In the recent case of McDaniel vs. Bullard, 34 Ill. 2d 487, 216 N. E. 2d 140, the Supreme Court held that an action for wrongful death did not abate upon the death of the beneficiary, but could be maintained for the benefit of the estate of the beneficiary. In so holding the Court stated:

“Today, damages for most torts are recognized as compensatory rather than punitive, and there is no reason why an estate that has been injured or depleted by the wrong of another should not be compensated whether ihe injured party is living or not.”

McDaniel specifically overruled Wilcox vs. Bierd, 330 Ill. 571, 162 N.E. 170, which held that common law actions founded on tort did not survive.

Accordingly, Michael B. Carr is hereby awarded the sum of $12,500.00, and $1,998.00 is awarded for the benefit of the widow of Michael J. Carr, deceased. The awards of $1,445.00 to the America Fore Insurance Group and $1,027.00 to Michael B. Carr, as administrator of the Estate of Michael J. Carr, for burial expenses remain as set forth in the original opinion.


source: Caselaw Access Project

author: Dove, J.

license: Public Domain

text:
    (No. 5141
    Jane A. Jones, a Minor, by Helen Betty McConnell, her Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1967.

    William R. Gunner, Attorney for Claimant.
    William G. Clark, Attorney General; John C. Connery, Special Assistant Attorney General, for Respondent.
   Dove, J.

This is an action brought by Jane A. Jones, a Minor, by Helen Betty McConnell, her Mother and Next Friend, to recover damages for items of personal property, which were destroyed by vandalism and burning by three inmates of the Dixon State School.

In July, 1963, claimant was living with her husband in a farm house located near the Dixon State School. The farm was known as the Ortgiesen place, and claimant and her husband were the only occupants. Upon returning from a drive-in movie on the night of July 8, 1963, claimant found the house vandalized. Claimant and her husband then moved in with claimant’s mother, Helen Betty McConnell, and, on August 4, 1963, while claimant and her husband were so residing with claimant’s mother, three inmates from the Dixon State School, Stanley Pastewski, Robert Coker and George Horn came on to the Ortgiesen place and set fire to the house, completely destroying the house and its contents.

A Departmental Report was filed herein, which stated:

“On August 4, 1963, Stanley Pastewski, Robert Coker and George Horn, all three patients of the Dixon State School, while on unauthorized absence from the institution set afire a farm home, which was the property of Clinton Ortgiesen, and as the result of such fire certain personal property belonging to James and Jane Jones, tenants, was damaged and destroyed. An inventory of the items damaged or destroyed was submitted to the Dixon State School.”

The case of Dixon Fruit Company, et al, vs. State of Illinois, 22 C.C.R. 271, presented facts almost identical to those in the instant case. The Court held that a finding of negligence is preliminary to an award in a case involving damage from an escaped inmate, since the State is not an insurer. In that case an inmate of the Dixon State School was allowed to wander at will, although he had a record disclosing that he was a mental defective, and possessed a history of previous escapes and of incendiarism. He was kept in a cottage, which not a maximum security cottage, escaped from the school grounds, and burned a truck. In holding that the State was negligent, the Court declared:

“It appears to us that respondent should have exercised more restrictive control over the movements of this particular patient. It does not seem reasonable to us that a known mental defective, with an exhibited tendency toward incendiarism, should have been allowed to wander at will without supervision in an institution wherein there were no restraining walls or other means of controlling his movements. This is especially so in view of the institution’s location with respect to the City of Dixon, wherein the property of many persons would be jeopardized by the activities of such a patient.
“It is, therefore, our finding that respondent was negligent in failing to take further measures in controlling the activities of this particular patient, and should, therefore, respond in damages. Malloy vs. State of Illinois, 18 C.C.R. 137.”

The records of the institution and the testimony of the officials show that the inmates, Pastewski, Coker and Horn, had histories of delinquency prior to their committment to the Dixon State School, and that Pastewski had previously set fire to his mattress while an inmate^ and had also set fire to a house in 1951. Curran vs. State of Illinois, 21 C.C.R. 278. We conclude that respondent was negligent in allowing the inmates to escape.

The Commissioner found that the damage to the contents of the house amounted to $500.00.

It is, therefore, the judgment of this Court that claimant be awarded the sum of $500.00.


author: Perlin, C.J.

text:
    (No. 5270
    Mitchell Lewinski, Administrator of the Estate of Walter Genza, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1967.

    George J. Lewis and Lawrence W. Blickhan, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks recovery of $25,000.00 as Administrator of the Estate of Walter Genza who died as a result of injuries, which were suffered on December 7, 1965 while he was a patient at the Soldiers’ and Sailors’ Home, which was operated by respondent. Claimant alleges several acts of negligence on the part of respondent, which he claims caused decedent’s death, including the following:

Walter Genza was a resident and patient in the infirmary at the Illinois Soldiers ’ and Sailors ’ Home when on December 7, 1965 he was taken by agents and employees of respondent to the shower room and left unattended, and, while taking a shower, he was severely burned and scalded; that respondent provided the deceased with a shower without a proper water and temperature regulator; maintained its water temperature at a dangerous and unsafe level; failed to warn the deceased of the dangerous and unsafe temperature of the water; and, failed to provide the proper protection to the deceased when it knew, or in the exercise of reasonable care should have known, that the facilities were unsafe and dangerous.

The record shows that on the date of the accident Genza had been a patient at the institution for about four months, and that as a result of a stroke, which left him paralyzed on the right side, he was unable to walk or talk, and could stand only with difficulty. He was fifty-one years old at the time of his death.

On December 7, 1965 the deceased was taken to the shower room in his wheel chair by attendant Robert Cook, who undressed him, and placed him under running water in the shower on a chair. Cook claims to have tested the water. The shower room was under the supervision of Sally Schanz, a registered nurse. Cook and George Hardy, both of whom had worked at the Home for many years, were present at the time of the incident. Sally Shanz testified that the rules and regulations required that an attendant be present at all times while a paralyzed patient was receiving a shower. Cook stated that after placing Genza under the shower he washed his back and head, and then went to attend another patient about five or six feet from the shower with a tub between the attendant and the deceased. Cook had asked the deceased if he wanted to get out, and he had indicated he did not. Two minutes later, as Cook was getting another man out of the tub, he heard Genza shout, and saw from the indicator on the shower handle that the hot water had been turned on from its original setting. Cook stated that the same shower had been there at least seventeen years. Hardy testified that at the time of the accident three patients were being bathed by the two attendants. It is undisputed that trenza died two days later from burns resulting from the scalding suffered by him on December 7, 1965.

The Chief Engineer of plant maintenance, Perry Mann, testified that he was in charge of plumbing and steamfitting at the institution, and that the power plant located in the building in which the decedent was burned had its own hot water source with a water heater, which controlled all the water facilities in the infirmary. On the day of the accident the gauge on the hot water heater read 171 degrees F., but actually tested at 158 to 159 degrees F. The gauge had not been regulated for at least two and one-half years. Mann testified that the temperature was kept at a high rate because it also regulated the water used for washing dishes, which required about 180 degrees F. Around the time of the accident or shortly thereafter the dishwashing facilities were abandoned because the food was being served from another kitchen, and the dishes were washed there.

No notice of the temperature of the water used in the shower in which the deceased was scalded was given by Mann or any of the employees under his supervision to any of the attendants at the infirmary. The witness stated that 110 degrees degrees F. is hot enough for use in a shower room.

The witness further testified that no booster was used to raise the temperature in the dishwasher, although this would have allowed the same facilities to service both shower room and kitchen safely. There was no Powers regulator on the shower used by Gfenza, although this piece of equipment, which controls the water coming through the shower at a desired temperature, would have prevented anyone from being scalded.

Mann stated frankly: “Any time we are putting out water hot enough that someone can be scalded we are at fault.”

Respondent’s contention that the deceased was contributorily negligent is without merit. The deceased was paralyzed, and unable to walk or talk. Nurse Shanz stated that his mental condition was poor. Reasonable care would require constant supervision in the shower room, since he obviously could not be responsible for his own actions.

Respondent was grossly negligent in the instant case in not only failing to provide the type of supervision required for one so helpless, but in providing water facilities, which it knew, or should have known, were inherently dangerous, and a threat to the lives of anyone using them. Respondent could not explain its failure to utilize the devices of a dishwasher booster and a Powers regulator, which would have served all purposes.

Mrs. G-enza, the widow of the deceased, testified that they were married on October 8, 1953, and had no children. The deceased had suffered a stroke approximately two and one-half years after they were married, leaving him unable to walk or talk. He had been in and out of the hospital during the ten years after he had the stroke, and the majority of time was spent ai home with Mrs. Genza. The decedent received $78.00 per month from Social Security benefits, and $135.40 from the Veterans Administration, which payments were discontinued after his death. The funeral bill was $546.24, and the widow received $500.00 in insurance money.

It appears that the benefits, which were received from Social Security and the Veterans Administration during the lifetime of the decedent, were largely used for his maintenance. There was no evidence with regard to decedent’s future prospects, although it may be inferred that they were poor. However, if an action for death is brought for the benefit of a surviving wife, the law presumes substantial damages from the fact of death alone. (I.L.P., Death, Sec. 30)

Therefore, claimant is awarded the sum of $7,500.00.


text:
    (No. 5352
    American States Insurance Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1967.

    Lucas and Lucas, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

American States Insurance Company has filed a claim for the sum of $2,582.00’ as a result of payment made by it to the State of Illinois based upon its erroneous assumption that a “remittance agent’s bond” was in effect. The bond was transmitted to the Department of Financial Institutions of the State of Illinois by the applicant, Edna J. Maloney and James E. Maloney, Jr., doing business as E. and J. Confectionery Store. Believing its bond to be duly issued, claimant paid to the Secretary of State the sum of $2,582.00 to cover checks returned by a bank for insufficient funds.

The Attorney General, representing the State of Illinois, has entered into a stipulation with claimant acknowledging that the sum in question was paid to the State of Illinois on the basis of a mistake of fact, and has agreed to the entry of an order in favor of claimant.

In view of the stipulation of the parties hereto, this Court hereby awards to claimant, American States Insurance Company, A Corporation, the sum of $2,582.00.


author: Pezman, J.

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

      Opinion filed August 16, 1967.

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

On March 2, 1967, claimant filed her petition for reimbursement for monies expended for nursing care and help, medical services and expenses from January 1, 1966 to January 1, 1967. Claimant seeks reimbursement in the sum of $3,912.47.

Claimant was injured on February 2, 1936 in an accident arising out of and in the course of her employment as Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the original case of Penwell vs. State of Illinois, 11 C.C.R. 365, in which an initial award was made, and at which time jurisdiction was retained to make successive awards in the future.

Claimant has attached to her petition as exhibit No. 1 a bill of particulars, which discloses the amounts expended from January 1, 1966 to January 1, 1967, to be as follows:

1. Nursing and practical help ...............$ 1,204.40
2. Room and board for nurses and practical help 730.00
3. Drugs, supplies and miscellaneous .......... 524.57
4. Physicians, hospital and professional services 1,453.50
Total expenses to January 1, 1967..........$ 3,912.47

A joint motion of claimant and respondent was filed herein on May 7,1967 asking the Court for leave to waive the filing of briefs and arguments therein. On that date an- order was entered granting the prayer of said motion.

Claimant’s petition clearly alleges that there has been no improvement in her physical condition since the last award, and that her condition requires constant care by physicians and practical nurses. Exhibit No. 2 attached to said petition contains receipts and vouchers for the monies detailed as having been spent in exhibit No. 1. From an examination of the petition and the exhibits, as well as the file in this cause, the Court is of the opinion that the expenditure of such sums of money were necessary for the care of claimant.

An award is, therefore, made to claimant in the amount of $3,912.47 for the period of time from January 1, 1966 to January 1, 1967. The Court reserves jurisdiction of this matter for further determination of claimant’s need for additional care.


text:
    (No. 5107
    Berdina Bugle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1967.

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

This is an action brought by claimant, Berdina Bugle, against respondent, State of Illinois, to recover damages for personal injuries, which claimant sustained on August 18, 1962 when she slipped and fell in a ladies restroom at the Illinois State Fairgrounds, Springfield, Illinois.

The facts concerning the happening of the accident, as shown by the evidence, are as follows: On August 18, 1962, claimant attended the Illinois State Fair at Springfield, Illinois with her sister, Mrs. Ann Huckaba, and her sister’s two young children. The group arrived at the Fairgrounds at about 11:30 A.M. This was a clear, warm summer day, and claimant was wearing a light summer dress and flat-heeled shoes.

Upon arrival at the Fairgrounds, claimant and her sister entered the restroom where claimant fell later the same day. While in the restroom they noticed that the first or second stool from the door was running over, and that a small puddle of water was forming in the area of the stool. The remainder of the restroom floor was dry at that time, and the restroom was well lighted by sunlight.

At approximately 8:00 P.M. the same day, claimant, her sister, and the children started back to their car. On the way back to their car claimant again entered the same restroom she had visited earlier that day. No lights had been turned on in the restroom, and claimant described the restroom as “dark’1’. Claimant took three or four steps into the restroom when her feet slipped, and she fell on her left elbow. While lying on the floor, claimant noticed that the floor surrounding her was wet, causing her clothes arid arm to become wet. No one was in the restroom other than claimant at the time of the accident, and claimant testified that she heard a stool running over.

Claimant became nauseated, and was unable to get up on her feet. She pulled herself over to the door of the restroom where two girls helped her outside. At this point Mrs. Huckaba arrived on the scene, and took claimant to a Bed Cross station on the Fairgrounds where she was treated, and given a pain pill. Claimant, her sister, and the children then returned home in Mrs. Huckaba rs car.

Claimant was examined on August 19, 1962 by Dr. Joseph B. Mallory in Mattoon, Illinois. On August 20, 1962, her left arm was x-rayed revealing a fractured radius head with displacement. Dr. Edward N. Zinschlag surgically excised the head of the left radius at the Mattoon Memorial Hospital. The injury and subsequent operation left claimant with a permanent disability in the function of her left arm. Claimant brings this action against the State of Illinois for the injury and disability suffered by her as a result of the fall.

It is clear from the evidence and circumstances in this case that claimant, while attending the Illinois State Fair at Springfield, Illinois, was an invitee of respondent. A person who is on the premises of another by invitation, express or implied, of the owner, has the legal status of an invitee. A business owner’s duty toward a customer as an invitee is to exercise reasonable care to discover defects or dangerous conditions on the premises, and a business owner is liable for injuries resulting from a condition, which he could have discovered in the exercise of reasonable care. McGourty vs. Chiapetti, 38 Ill. App. 2d 165, 186 N.E. 2d 102 (1962); Ellguth vs. Blackstone Hotel, Inc., 340 Ill. App. 587, 92 N.E. 2d 502 (1950); Jones vs. 20 N. Wacker Drive Bldg. Corp., et al, 332 Ill. App. 382, 75 N.E. 2d 400 (1947). Claimant went upon the Fairgrounds to attend the Illinois State Fair at the express invitation of respondent.

An invitation to transact business extends to any portion of the premises, which the owner may reasonably anticipate the invitee to use in connection with the conduct of the business on the premises. McGourty vs. Chiapetti, 38 Ill. App. 2d 165, 186 N.E. 2d 102 (1962); Ellguth vs. Blackstone Hotel, Inc., 340 Ill. App. 587, 92 N.E. 2d 502 (1950). Clearly the use of the public restroom in question, located on the Fairgrounds, by claimant was within the scope of the invitation extended to claimant by respondent.

Respondent argues that claimant has failed to show that respondent had actual or constructive notice of the wet condition of the restroom floor, which caused such floor to become slippery. Respondent contends that in the absence of notice it cannot be held liable for claimant’s injuries citing Arnett vs. City of Roodhouse, 330 Ill. App. 524, 71 N.E. 2d 849 (1947), and Weygandt vs. State of Illinois, 22 C.C.R. 478 (1957). Respondent contends that claimant has failed to show that the water on the floor of the restroom where claimant fell was from the same toilet, which claimant had observed overflowing at 11:30 A.M. that same day, and that, therefore, there is no showing that respondent should be charged with constructive notice of the dangerous condition of the floor by reason of the duration of the dangerous condition.

There is no hard and fast rule in determining when it can be said that the State had constructive notice of a dangerous condition, and each case must be decided on its own particular facts. Brown vs. State of Illinois, 22 C.C.R. 231 (1956). Respondent has failed to present any proof that the wet slippery condition of the floor in the restroom did not result from the overflowing toilet observed by claimant earlier in the day. Respondent failed to present any proof that the restroom had been inspected by an employee of respondent at any time during the day in question.

It is the opinion of this Court that, from the evidence of claimant that a toilet was overflowing at 11:30 A.M., that a toilet was overflowing again at 8:00 P.M., and that the floor of the restroom was wet and slippery at 8:00 P.M., a reasonable inference can and must be drawn that the toilet overflowed continually, or at least a substantial period of time from 11:30 A.M. to 8:00 PM., causing the condition of the floor to be dangerous. It is the further opinion of this Court that such a condition existed for a sufficient period of time that respondent should, in the ordinary exercise of care, have been aware of the dangerous condition of the floor, and should, therefore, be charged with constructive notice of the dangerous condition of the floor in the restroom existing at the time claimant fell.

Claimant cannot be held to have assumed the risk of a wet slippery floor in the restroom at 8:00 P.M. because she was aware of an overflowing toilet in the same restroom at 11:30 A.M. the same day. The evidence indicates that at 11:30 A.M. only a small portion of the floor immediately surrounding the overflowing toilet was wet. Respondent’s failure to adequately light the restroom was an important factor contributing to claimant’s unawareness of the dangerous condition of the restroom floor. Claimant cannot be said to have assumed a risk of which she had no knowledge. Claimant was not negligent in assuming that respondent would perform the duty owed claimant to maintain the restroom in a safe condition.

It is the opinion of this Court that respondent was negligent in failing to adequately light the restroom, and in permitting the floor in the restroom to become wet and slippery, thereby causing claimant to fall and injure herself. Respondent, in the exercise of reasonable care, should have discovered the dangerous condition of the floor in the restroom. The evidence in this case indicates that respondent has failed to comply with its duty to exercise reasonable care to discover the dangerous condition of the floor existing in the restroom in question. It is the opinion of this Court that claimant is entitled to an award in the amount of $5,000.00.

Based upon the medical findings submitted, the nature and extent of the injuries of claimant, an award is hereby made in the sum of $5,000.00.


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    (No. 5164
    John Hudson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1967.

    Warren J. Carey, Attorney for Claimant.
    William G. Clark, Attorney General; Philip J. Rock, Assistant Attorney General, for Respondent.
   Dove, J.

This is a cause of action brought by claimant against respondent, State of Illinois, for damages under Section 8C of the Act creating the Court of Claims, which provides that the Court of Claims shall have jurisdiction to hea.r 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 $15,000.00; for imprisonment of 14 years or less but over 5 years, not more than $30,000.00; for imprisonment of over 14 years, not more than $35,000.00; and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.

It appears from the evidence in this case that on December 23, 1960 at about 1:00 A.M., claimant, John Hudson, his common-law wife, Myrtle Bennett, and one Lee Berry were in claimant’s apartment located at 4624 South Independence Avenue, Chicago, Illinois. Claimant and Myrtle Bennett were in bed, and Lee Berry was sleeping in a chair in the same room. Claimant testified that Myrtle Bennett got out of bed, and went into the kitchen, which was adjacent to the bedroom. Claimant further testified that shortly before Myrtle Bennett got out of bed he had reached into a closet near the bed and taken out a bolt action rifle, which had been inoperable for some time. Claimant further testified that, while sitting on the edge of the bed working the bolt action mechanism of the rifle back and forth, a cartridge in the chamber of the rifle discharged. The bullet struck Myrtle Bennett, who had returned from the kitchen and was standing in the bedroom doorway, in the chest and killed her.

Claimant and Lee Berry placed the dead woman on the bed in the apartment, and both fled the apartment. Claimant took the rifle with him, and later disposed of it by throwing it in the snow in an alley near the apartment. Claimant returned to his apartment at about noon the next day. The police were called, and claimant was taken into custody.

Subsequent to his arrest claimant was indicted, and tried for the crime of murder. Lee Berry was indicted as an accessory. Upon trial by jury, claimant was found guilty of murder, and sentenced to 14 years in the State Penitentiary. Subsequently an appeal was filed. The State’s Attorney of Cook County filed a confession of error wherein it was confessed that there was error in the case, which warranted a reversal and remandment for a new trial. The Appellate Court reversed the conviction, and granted claimant a new trial. Upon the second trial, which was a bench trial, claimant was found to be not guilty of the charge of murder, and was discharged by the court.

It was stipulated by the parties hereto that claimant had been confined in the Illinois State Penitentiary from April 6,1961 to April 1, 1964. Claimant now brings this action against respondent for damages for time unjustly served in the Illinois State Penitentiary.

There is no dispute in the evidence that claimant committed the act of firing the rifle, which caused the death of Myrtle Bennett. In his second trial, a bench trial, claimant was found to be not guilty of the charge of murder, presumably on the grounds that claimant was not proven guilty of murder beyond a reasonable doubt.

In two previously decided cases, Munroe vs. State of Illinois, Case No. 4913, and Jonnia Dirkans vs. State of Illinois, Case No. 4904, this Court held that one of the primary issues to determine in a case brought under Section 8C of the Court of Claims Act was whether the claimant was innocent of the crime for which he was imprisoned. The burden is on claimant to prove by a preponderance of the evidence that the act for which he was wrongfully imprisoned was not committed by him. Claimant must prove his innocence of the “fact” of the crime.

In this case claimant seeks to prove his innocence of the crime for which he was imprisoned by his own uncorroborated testimony to the effect that the shooting was accidental. Contradicting the uncorroborated testimony of the claimant is the testimony of Lee Berry who was called as a witness by the respondent that claimant and Myrtle Bennett had had a disagreement over money immediately prior to the shooting. The evidence further shows that claimant did not report the' alleged accident to the proper authorities, but instead fled the scene of the shooting, and disposed of the weapon.

The quantum of proof, which claimant must present to this Court to prove his innocence of the crime for which he was imprisoned, and thereby entitle himself to an award of damages from the State of Illinois for time unjustly spent in prison, is greater than the proof required to convince a judge that there was reasonable doubt as to his guilt of the crime of murder. In the first instance he must prove his innocence of the “fact’’’' of the crime by a preponderance of the evidence, while in the second instance he must only present sufficient evidence to raise a reasonable doubt of his guilt of the crime charged.

It is the opinion of this Court that claimant has failed to prove by a preponderance of the evidence that he is innocent of the fact of the crime for which he was imprisoned.

For the foregoing reasons, claimant’s claim is hereby denied.


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    (No. 5313
    Chism, Inc., A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1967.

    Drach, Terrell and Deffenbaugh, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

This claim arises out of a contract, dated October 1,1964, between claimant and respondent, by and through the Director of the Department of Public Works and Buildings, for repairs to a bridge over the Illinois River.

The bid sheet or contract schedule of prices, which was the last page of the specifications, sets forth the items to be bid upon, and also the quantities as specified by the State of Illinois. One of the items was a steel grid floor, which was to be bid upon at a unit price per square foot. Claimant bid a unit price of $7.15 per square foot, and, using the quantity of 7,110 square feet, as specified in the contract, arrived at a total bid for that item of $50,836.50.

Another item on the bid sheet was lightweight concrete, which was to be bid at a unit price per cubic yard. Claimant bid a unit price of $500.00 per cubic yard, and, using the quantity of 11.30 cubic yards, as specified in the contract arrived at a total bid of $5,650.00 for this item.

The following special provisions of the contract are pertinent to the question presented by this case:

“Steel Grid Floor 3": This item consists of furnishing, fabricating, transporting and erecting in place the concrete filled steel grid floor, including trim bars, galvanized form pans, and shop and field welding.
“The steel floor shall be a Gruelich, 3-inch concrete filled “ArmaDeck” type, or equal. The floor shall be as shown on the plans, and shall meet the requirements for design of steel grid floors as specified in Division I of the American Association of State Highway Officials Standard Specifications for Highway Bridges, Eighth Edition.
“The concrete used in filling the steel grid floor shall be a lightweight structural concrete as specified elsewhere in these special provisions.
“Payment for steel grid floor shall include the furnishing of all materials, equipment, tools, and labor necessary for the satisfactory completion of the work. Payment will be made at the contract unit price per square foot of Steel Grid Floor 3" complete in place.
“Lightweight Structural Concrete: This work consists of the furnishing, transporting, mixing, placing, curing and finishing of lightweight structural concrete in accordance with the applicable portions of Section 52 of the Standard Specifications and the following Special Provisions.
“Basis of Payment: This work will be paid for at the contract unit price per cubic yard, measured as above specified, for lightweight structural concrete.”

The completion of the project required the use of 63.50 cubic yards of lightweight structural concrete in addition to the 11.30 cubic yards specified in the contract. Claimant brings this action to recover $31,750.00 for the additional 63.50 cubic yards of lightweight structural concrete used to fill the 3" steel grid floor at the contract bid price of $500.00 per cubic yard.

Respondent contends that claimant is limited to the amount specified by the contract, and that the Constitution of the State of Illinois prohibits granting extra com.pensation to any contractor after service has been rendered or a contract made. Respondent contends that the lightweight structural concrete necessary to the satisfactory completion of the steel grid floor is embraced within the term “all materials” appearing in that provision of the contract, which recites that:

“Payment for steel grid floor shall include the furnishing of all materials, equipment, tools and labor necessary for the satisfactory completion of the work.”

Two witnesses appeared for claimant. The first witness was Harry J. Alton, Sr., an employee of the State of Illinois, Division of Highways for forty years, and who, from 1965 to his retirement on October 19, 1966, was the Engineer of Design for the Illinois Division of Highways. Mr. Alton testified that in his opinion claimant should be paid for the lightweight concrete. In his opinion the concrete was to be paid for separately, and was not to be considered part of the steel grid floor or incidental to the steel grid floor. Mr. Alton stated that the term “concrete filled steel grid floor” refers to a particular type of steel grid floor, there also being a type of flooring referred to as “open deck steel grid floor”. Mr. Alton also testified that it would have been impossible to fill the grid deck with concrete, and then put it in position.

The other witness for claimant was Don M. Chism, President of Chism, Inc. Mr. Chism testified that it was not possible to prefabricate a steel grid floor, fill it with concrete, and install it in place. He testified that the steel grid floor must first be installed in place, and then filled with concrete. He testified that he could not alter the quantity of lightweight structural concrete specified in the contract, and that it frequently occurs that the quantities set by the State are at variance with the quantities necessary to complete the job.

Section 2.2 of the Standard Specifications for Road and Bridge Construction, commonly known as the Blue Book, recites that the quantities are only placed in the schedule of prices for comparison of bids, and are not necessarily the actual quantities to be used. Section 9.3 of the Blue Book provides that, if unit price bids are requested by the State, the contractor is to be paid for actual amounts used whether it be more or less than the total estimated by the State on the schedule of prices.

The testimony of Mr. Alton and Mr. Chism has not been refuted or contradicted by the State. It is evident that the terms of the contract are ambiguous with regard to the provisions relating to the “concrete filled steel grid flooring”. It is a settled law of construction' that a contract, which is ambiguous, will be construed most strongly against the party who prepared the contract, as such party is responsible for the ambiguity. Ekstrand vs. Severin, 32 Ill. App. 693, and Finch vs. McIntosh, 171 Ill. App. 120. In this case respondent was entirely responsible for the preparation of the contract. j

It appears to the Court that the provisions in regard to the steel grid deck and the lightweight concrete are completely separate provisions in the special provisions section of the contract.

It is the opinion of this Court, based upon the unrefuted and uncontradicted testimony of Mr. Alton and Mr. Chism, the provisions of the contract, and the applicable sections of the Blue Book, that the additional 63.50 cubic yards of lightweight concrete necessary for the satisfactory completion of the contract were not incidental to the steel grid deck, and that claimant is entitled to be paid for the additional 63.50 cubic yards of lightweight concrete used at the unit price of $500.00 per cubic yard, or a total of $31,750.00. Respondent’s contention that the contract was for a sum certain and that to pay claimant additional compensation would violate the Constitution of the State of Illinois is not supported by the evidence in this case. An examination of the contract and particularly the bid sheet or contract schedule indicates that the contract was one based on unit price specifications and not one for a sum certain. As stated above, the Blue Book provides that, if unit prices are requested, as they were in this contract, the contractor is to be paid for actual amounts used whether it be more or less than the total estimated by the State on the schedule of prices. Claimant used an additional 63.50 cubic yards of lightweight concrete, and should accordingly be compensated therefor.

Claimant’s claim is hereby allowed in the sum of $31,750.00.


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    (No. 5338
    The Home Insurance Company, as Subrogee of McGuire Equipment Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1967.

    Clausen, Hirsh, Miller and Gorman, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, as subrogee of McGuire Equipment Company, seeks to recover the sum of $564.45, the cost of repairing certain equipment leased by the State of Illinois Department of Public Works and Buildings, Division of Highways, from the McGuire Equipment Company. Claimant charges that said leased equipment was in the possession of the State of Illinois, and, while in the possession of the State of Illinois, was damaged on August 2, 1965 to the extent of $564.45. Claimant alleges in clause 4 of its complaint as follows:

“4. Among the terms and conditions of said Lease Agreement is the following language, which is relevant to the present controversy : “Lessee acknowledges that the above equipment is the property of McGuire Equipment Company, Lessor herein; that Lessee has received the equipment in good condition, and will return it in the same condition .... In the event the equipment is lost or damaged, Lessee agrees to pay Lessor the value thereof or the cost of repairing same, and, if Lessee is in default in rental or in any terms hereunder, Lessor may take possession of said equipment wherever located, remove the same, and Lessee shall be liable for all costs and attorney fees connected therewith.”

Subsequently claimant obtained leave to amend its complaint to add Count II alleging that a bailment existed between claimant and respondent.

On June 21, 1967, claimant and respondent, by their respective attorneys, filed with this Court a stipulation of facts, which reads as follows:

“Claimant, The Home Insurance Company, as Subrogee of McGuire Equipment Company, by its attorneys, Clausen, Hirsh, Miller and Gorman, and the State of Illinois, by William G. Clark, Attorney General of the State of Illinois, its attorney, hereby stipulate and agree to the following facts:

“That equipment was delivered to respondent at the special instance and request of the Department of Public Works and Buildings.
“That the statements attached to the complaint as exhibit A are due and owing in the sum of $564.45.
“That no assignment or transfer of the claim has been made.
“That there is rightfully due to claimant the sum of $564.45.
“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 up upon the trial of said issue.”

From the aforesaid stipulation of facts, the record, and other matters before this Court it appears that McGuire Equipment Company did lease to the State of Illinois Department of Public Works and Buildings, Division of Highways, a piece of equipment. It further appears that said equipment was returned to the said McGuire Equipment Company in a damaged condition after it had been in the exclusive possession of the Division of Highways. It further appears that claimant, The Home Insurance Company, as insurer of certain risks on behalf of McGuire Equipment Company, was called upon, and did pay the sum of $564.45 for repair of the aforementioned damaged equipment, and was necessarily subrogated to any right of McGuire Equipment Company to recover from respondent for such repairs.

Claimant is hereby awarded the sum of $564.45.


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    (No. 5388
    Gunthorp-Warren Printing Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1967.

    Herman B. Goldstein, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Gunthorp-W arren Printing Company, seeks to recover the sum of $718.00 as payment for services rendered in the printing of 5,100 copies of “Goals”, a newsletter of the Illinois Governor’s Committee on Employment of the Handicapped, a Committee functioning under the Board of Vocational Education and Rehabilitation of the State of Illinois. Attached to the complaint is a copy of an invoice-voucher of the State of Illinois, marked exhibit A, and a letter from the Deputy Director of the Division of Vocational Rehabilitation, dated December 8, 1966, marked as exhibit B. The letter states in part:

“I have your letter along with the voucher in the amount of $718.00 presented by the Gunthorp-W arren Printing Company for the printing of “Goals” in May and June, 1965. You will recall that I informed you at the time of last contact that this was a charge made in the last biennium, and could not legally be paid. I instructed you at that time to submit your bill to the Court of Claims showing the printing order number, along with other information that you might have in order to determine whether or not it will be allowed by the Court of Claims.”

On June 21,1967, a Stipulation of Facts was entered into by and between claimant and respondent, which reads as follows:

“Claimant, Gunthorp-W arren Printing Company, by its corporate officer, and the State of Illinois, by its attorney, hereby stipulate and agree to the following facts:
“That materials were delivered to respondent at the special instance and request of the Illinois Governor’s Committee on Unemployment of Handicapped.
“That the statements attached to the complaint as exhibit A are due and owing, namely, $718.00.
“That, as a result of delay in billing, payment was not made prior to the closing of the biennium appropriation.
“That no assignment of transfer of the claim has been made.
“That there is rightfully due to claimant the sum of $718.00.
“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 up upon the trial of said issue.”

From the Departmental Report and stipulation it appears that the reason for non-payment was that the appropriation had lapsed before the statement for services rendered was presented. There is no question but that the services were rendered, and were satisfactory.

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.

Claimant is hereby awarded the sum of $718.00.


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    (No. 5398
    Vernon J. White, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1967.

    Vernon J. White, Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

On March 23, 1967, claimant, Vernon J. White, 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, Vernon J. White, deposited with the office of the Secretary of State of the State of Illinois in accordance with Chap. 95%, Sec. 7-204, 1965 Ill. Rev. Stats., as amended, the sum of $310.00.
“That on February 24, 1955 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 August 1, 1962.
“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, Chap 95½, 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, Vernon J. White, in the amount of $310.00.


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    (No. 4912
    Henry Napue, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 18, 1967.

    McCoy and Ming, Attorneys for Claimant.
    William G. Clark, Attorney General; Daniel Kadjan and Philip J. Rock, Assistant Attorneys General, for Respondent.
   Dove, J.

This is a cause of action brought by claimant against respondent, State of Illinois, for damages under Sec. 80 of the Act creating the Court of Claims, 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 $15,000.00; for imprisonment of 14 years or less but over 5 years, not more than $30,000.00; for imprisonment of over 14 years, not more than $35,000.00; and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.”

On August 21, 1938, at approximately 3:00 A.M., in a Chicago cocktail lounge, a Chicago Police Officer was fatally wounded during an attempt to prevent an armed robbery of the lounge and its patrons by four gunmen. In the melee, one of the robbers, Trussie Townsend, was killed and another robber, George Hamer, seriously wounded. In due course, Hamer was apprehended, charged with the murder of the policeman, convicted on a plea of guilty, and sentenced to 199 years in prison.

Several months later, Howard Poe was apprehended, tried and convicted of the murder of the same policeman, sentenced to death and executed. Subsequently claimant, Henry Napue, was arrested for the murder of the policeman, and on June 18, 1940, was indicted by a Cook County Grand Jury. Claimant entered a plea of not guilty. On August 22, 1940, claimant was found guilty of the murder of the policeman, and was sentenced to the Illinois State Penitentiary for a term of 199 years. The State’s principal witness against Napue was George Hamer, who had previously pled guilty to a charge of murder of the same policeman, and who had been sentenced to the Illinois State Penitentiary for 199 years. Hamer testified at the trial that he had not been promised a reward or consideration for his testimony. Subsequent events proved that this denial was false, and that the Assistant State’s Attorney who prosecuted Napue knew such denial to be false.

Thereafter, Henry Napue filed a post-conviction petition for release from prison on the ground that his conviction had been obtained by the known use of false testimony. The trial court denied Napue’s petition. On appeal, the Illinois Supreme Court affirmed the decision of the trial court. On petition for certiorari, the Hnited States Supreme Court reversed the denial of post-conviction relief, holding that the failure of the prosecutor to correct Hamer’s false testimony, known to be so, denied Napue due process of law, in violation of the 14th Amendment. Napue’s conviction was set aside by the trial court, and the State’s Attorney subsequently elected to dismiss the indictment. On March 7,1960, Napue was released from custody, having been imprisoned since August 22, 1940.

Claimant thereafter filed this claim for compensation from the State of Illinois for “unjust imprisonment” during the period of 20 years from the date of his incarceration to the date of his release.

In order that claimant be entitled to an award from the State of Illinois for time unjustly served in prison, it is well settled that claimant must 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 in prison was not committed by him; and (3) the amount of damages to which he is entitled. Jonnia Dirkans vs. State of Illinois, Case No. 4904; Munroe vs. State of Illinois, Case No. 4913.

In- the Dirkans case the Court held that a claimant attempting to recover an award for unjust imprisonment must prove his innocence of the “fact” of the crime for which he was imprisoned. The Court went on to state that in its opinion it was not the intention of the Illinois General Assembly to open the Treasury of the State of Illinois to inmates of its penal institutions by the establishment of their technical or legal innocence of the crimes for which they were imprisoned.

Claimant called three witnesses to testify in his behalf. Stella Dowery, the mother-in-law of claimant, testified that at the time of the robbery, claimant, his wife and two children lived in the apartment house where she was the manager. She testified that on August 20, 1938 she went to bed about 11:00 P.M., and that at that time claimant, Henry Napue, was on the premises. She stated that she was awakened at about 3:00 A.M. by one Howard Poe, and that claimant left the house with Poe.

Lenwood Dowery, a brother-in-law of claimant, testified that on August 20, 1938 he lived in the same rooming house as claimant. He stated that on August 20, 1938 he was with claimant in front of the rooming house from 11:00 P.M. until about 12:30 A.M. on August 21, at which time he went to bed. He further testified that at about 3:30 or 4:00 A.M. he was awakened by Poe who was looking for claimant. He told Poe he thought claimant was upstairs. Fifteen or twenty minutes later he said he heard someone running down the stairs.

Joseph Dowery, a brother-in-law of claimant, testified that on August 20,1938 he lived in the same rooming house with claimant. That on August 20, 1938 he got home about 11:00 P.M., and that claimant got home about 12:00 M. or 12:30 A.M. on August 21, 1938. He stated that he played cards with claimant, claimant’s wife and another girl until about 2:00 A.M., when claimant and his wife went to their apartment.

Henry Napue testified that on the night in question he played cards with his wife, Joe Dowery and another girl. That he went up to his apartment to see if he could get one of his children who had been crying to go to sleep. He stated that he fell asleep himself, and that the next thing he remembers is being awakened by Howard Poe who wanted him to help him get George Hamer to a doctor, because Hamer had been shot in a crap game. He testified that he went with Poe to take Hamer to a doctor, and that it was not until the next morning that he learned of the robbery. The next evening claimant left Chicago, and went to Newark, New Jersey, where he remained until he was apprehended. He stated that he did not know where his wife was living at the present time, and that he had made an effort to find her, but that neither her mother nor brothers knew where she lived.

George Hamer testified on behalf of respondent. He stated that at the criminal trial of Henry Napne he had testified that Napue was an accomplice in the robbery. He further testified that at the present time he had no recollection of being at the robbery or being involved in the robbery himself, and that he had no recollection of Napue being involved in the robbery.

It must be noted by the Court that the three witnesses presented by claimant, and to which claimant is related by marriage, were not with, and did not see claimant after 2:00 A.M. on the night of the robbery. The one person who presumably could have testified as to claimant’s whereabouts at the time of the robbery, claimant’s wife, was not called to testify by claimant who stated that he was unable to locate his wife. The testimony of George Hamer lends no support to claimant’s testimony that he was not involved in the robbery, inasmuch as Hamer testified that at this time he had no recollection that he was even involved in the robbery.

The denial of due process, which is the basis of the Supreme Court’s reversal of the original criminal case, does not conclusively establish the claimant’s innocence in fact of the crime for which he was imprisoned. The right of a claimant in this Court to an award under Sec. 80 of the Court of Claims Act is predicated on such innocence. It is the opinion of this Court that claimant has failed to prove by a preponderance of the evidence that he is innocent of the fact of the crime for which he was imprisoned.

The claim is hereby denied.


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    (No. 5432
    M. H. Wall, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1968.

    M. H. Wall, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, Dr. M. H. Wall, seeks the sum of $47.00 for dental services contracted for by the Quincy District Office of the Division of Child Welfare, Department of Children and Family Services.

The parties have stipulated that neither party objects to the entry of an order in favor of claimant and against respondent in the sum requested. It appears from the record that the sole reason for nonpayment of the bill is that funds appropriated for such payment had lapsed, and that the lapsed balance was sufficient to cover the charge in question.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R. 302; Gilbert-Hodgman, Inc. vs. State of Illinois, 24 C.C.R. 509. It appears that all qualifications for an award have been met in the instant case.

Claimant is hereby awarded the sum of $47.00.


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    (No. 5434
    Florence Crittenton Peoria Home, A Not-For-Profit Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1968.

    Heyl, Royster, Voelker and Allen, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover for maintenance and medical services rendered to Linda Jo Clark, a resident of the State of Illinois, living at Olney, Illinois, who was referred to claimant fo^ services by the office of the Illinois Department of Children and Family Services at Olney, Illinois. The services for which the claim is filed were rendered to the subject from April 27,1967 through June 30, 1967 at the established and agreed rate of $5.00 per diem, and the total now claimed is $320.00 for that period. The same remains unpaid by virtue of the fact that the appropriation had lapsed from which the statement for these services would have been paid.

A statement of facts by the Director of the Department of Children and Family Services constitutes the Departmental Report, and is the prima facie evidence in this cause. Subsequently, on the 4th day of March, 1968 a written stipulation, entered into by claimant and respondent, was filed herein whereby it was agreed that no further oral or written evidence would be introduced by either party, and that, in fact, the Departmental Report or statement of facts would be admitted into evidence in this proceedings without objection by either party.

The aforementioned statement of facts reads as follows:

"Claimant’s statement in paragraph 1 of the complaint that claimant is a not-for-profit corporation duly licensed by the State of Illinois engaged • in the operation of a home to provide nursing care, maintenance and education for pregnant unmarried females in the City of Peoria, County of Peoria, State of Illinois, is correct.
“Regarding paragraph 2, maintenance and medical services for Linda Jo Clark were contracted for through our Olney District Office of the Division of Child Welfare, Department of Children and Family Services, and that these services were to be provided by claimant.
“Services were rendered to Linda Jo Clark by the Florence Crittenton Peoria Home from April 27, 1967 through June 30, 1967 at the established rate of Five Dollars ($5.00) per diem; the total of said services rendered is in the sum of Three Hundred Twenty Dollars ($320.00), which is now due and unpaid.
“With regard to paragraph 4 of claimant’s complaint, to the best of our knowledge this statement is true.
“The Olney District Office Supervisor, B. Michael Bequette, has stated that records in their office indicate that the bill for the above mentioned services for Linda Jo Clark was not received until September 29, 1967; whereas bills for services rendered prior to July 1,1967, must be presented no later than September 15, 1967, as per exhibit “A” attached to the complaint.
“As to paragraph 6 of the complaint in which claimant states that no assignment or transfer of any part or interest therein of the claim has been made, we can only state that we have no knowledge of any such assignment or transfer.
“Our investigation indicates that the charge of Three Hundred Twenty Dollars ($320.00) appearing in this claim is legitimate, and, therefore, the claimant is justly entitled to payment of this sum.
“The statements made in paragraphs 8 and 9 of the complaint appear to be correct to the best of our knowledge.
“Funds for payment of this charge were available in the appropriation to the Department of Children and Family Services contained in Section 5 of House Bill 1394, 74th General Assembly, approved July 17, 1965. The lapsed balance was sufficient to cover the charge in question.”

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. Continental Oil Company vs. State of Illinois, 23 C.C.R. 70, and M. J. Holleran, Inc. vs. State of Illinois, 23 C.C.R. 17.

Claimant, Florence Crittenton Peoria Home, is hereby awarded the sum of $320.00.


text:
    (No. 5437
    Merchant Service Co-Op, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1968.

    Merchant Service Co-Op, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Merchant Service Co-Op, filed its complaint in the Court of Claims on November 30, 1967 in which it seeks the sum of $60.94 for materials furnished the Secretary of State, Drivers License Division.

A Departmental Report was filed, which stated in part: “Our records indicate that parts were received and installed. The invoice was not submitted until after the appropriation for the 74th biennium had lapsed. ’y

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

“The report of the Secretary of State (Drivers License Division) dated January 3, 1968, (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 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 $60.94.
“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, Merchant Service Co-Op, is, therefore, hereby awarded the sum of $60.94.


text:
    (No. 5443
    The Fleischli Medical Group, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1968.

    The Fleischli Medical Gboup, Claimant, pro se.

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

Claimant, The Fleischli Medical Group, seeks to recover from respondent the sum of $102.00 for services rendered upon request of the Office of the Secretary of State.

A Departmental Report of the Secretary of State, dated February 19, 1968, was filed with the Court of Claims as exhibit A, and admitted into evidence without objection by virtue of the stipulation by and between claimant and respondent filed herein on the 29th day of February, 1968.

It is clear that this is a matter of a lapsed appropriation for the statement of services of claimant was not received until the funds in the Office of the Secretary of State for the biennium when the services were rendered had lapsed. By virtue of the Departmental Report and stipulation between claimant and respondent, we find there is no question of law or fact in controversy, and claimant, The Fleischli Medical Group, is hereby awarded the sum of $102.00.


text:
    (No. 5455
    Mobil Oil Corporation, A New York Corporation, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1968.

    Edward J. Paul, Attorney for Claimant.

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

Claimant, Mobil Oil Corporation, a New York Corporation, filed its complaint in the Court of Claims on January 12, 1968, in which it seeks the sum of $134.19 for materials furnished the Department of Conservation.

A Departmental Report was filed, which stated in part:

“I wish to certify at this time that invoice No. 12577, dated June 17, 1967, in the amount of $134.19 was never paid by this Department, due to the failure of Mobil Oil Corporation to submit a billing in time to be processed out of 74th biennial funds.”

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

“The report of the Department of Conservation, dated January 19, 1968, (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 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 $134.19.
“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, Mobil Oil Corporation, a New York Corporation, is, therefore, hereby awarded the sum of $134.19.


text:
    (No. 5544
    Walton School of Commerce, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1968.

    Walton School of Commerce, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Walton School of Commerce, seeks to recover the sum of $580.00 for tuition furnished to one Clayton E. Stepp, 16219 Homan, Markham, Illinois.

A stipulation was entered into by claimant and respondent as follows :

“That claimant, Walton School of Commerce, had rendered services and materials as alleged in claimant’s statement of claim.
“That there is lawfully due the claimant the sum of Five Hundred Eighty Dollars ($580.00).
“That, as a result of delay in billing by the claimant herein, payment was not made prior to the closing of the biennium appropriation.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof had occurred.
“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.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is 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.

Claimant, Walton School of Commerce, is, therefore, awarded the sum of $580.00.


text:
    (No. 5561
    Kane County Service Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1968.

    Kane County Service Company, Claimant, pro se.

      William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Kane County Service Company, seeks to recover the sum of $309.05 for soybean oil meal furnished to the Illinois State Training School for Boys at St. Charles, Illinois.

A stipulation was entered into by claimant and respondent as follows:

“That claimant, Kane County Service Company, had furnished soybean oil meal as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of Three Hundred Nine Dollars and Five Cents ($309.05).
“That, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennium appropriation.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof had occurred.
“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.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is 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.

Claimant, Kane County Service Company, is, therefore, award the sum of $309.05.


text:
    (No. 4987 and 4988—Consolidated
    Louis Qualls and Matthew C. Moore, Claimants, vs. State of Illinois, Respondent.

      Opinon filed October 10, 1968.

    H. Ernest Lafontant, Attorney for Claimants.
    William G. Clark, Attorney General; Daniel Kadjan, Assistant Attorney General, for Respondent.
   Dove, J.

This is a cause of action brought by claimants against respondent, State of Illinois, for damages under Sec. 8C of the Act creating the Court of Claims, 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 five years or less, not more than $15,000.00; for imprisonment of fourteen years or less but over five years, not more than $30,000.00; for imprisonment of over fourteen years, not more than $35,000.00, and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.

Claimants, Louis Qualls and Matthew C. Moore, were jointly indicted for the crime of forcible rape of Isabel Preusser by the April Term of the Cook County Grand Jury. Both claimants entered a plea of not guilty to the charge. Claimants were tried on the charge before a jury during the month of July, 1959, and found guilty. Both claimants were sentenced to imprisonment in the Illinois State Penitentiary for a term of 25 years. Claimants subsequently filed their Writ of Error with the Supreme Court of Illinois, and, on January 20, 1961, the Supreme Court of Illinois reversed the Criminal Court of Cook County, and found:

A. That there was no proof that the prosecuting witness was paralyzed by fear, or that she was overcome by superior strength.

B. That there was no proof that she offered any resistance.

C. That there was no proof of any force exerted on prosecutrix.

D. That there was no proof that prosecutrix was afraid.

Claimants were subsequently released from the Illinois State Penitentiary having been imprisoned from July 1, 1959 to January 20, 1961.

Claimant, Louis Qualls, testified in this cause that, on April 25, 1959, at about 1:00 A.M. he went into Al’s Celebrity Lounge, where Isabel Preusser was sitting with a white man at the bar. Claimant bought them both a drink. The white man introduced Mrs. Preusser as his cousin. The woman then asked claimant if he wanted some companionship, and he told her, “I told you I am in a dull mood.” Claimant testified that she asked him for $7.00 for the man who was with her whose name was Raymond. Qualls then gave the $7.00 to Raymond, and they left the lounge and went to Raymond’s vehicle, which was parked near the corner. As Raymond started to get in the car and sit down, he saw two men that he had been talking to in the tavern. Raymond jumped out of the car, a couple of words were said, and he fled. After that the woman got out of the car, and said to Qualls “Don’t leave me, I don’t want you to leave me.” Qualls and the woman then walked across Cottage G-rove Avenue from east to west. He testified that the woman walked with him voluntarily from Cottage Grove Avenue to South Park Avenue, which was approximately four blocks. At South Park Avenue he and the woman got into a cab. In the cab claimant said to the driver, “I have been a hero, and I want you to see what I had to be hero with, what I had to defend myself with.” Then he stated that he showed the cab driver a little pen knife, and at that the driver and the woman laughed. Claimant testified that they left the cab, and walked up to-his apartment, rang the hell, and the other claimant, Matthew C. Moore, opened the door. The three of them then went into the kitchen. In the kitchen all three had coffee with some Scotch mixed with it. In about an hour the woman excused herself, and went into the living room-bedroom combination for about 10 or 15 minutes, and then called Qualls and said, “Well it is getting late, you had better get something started.” She undressed, and got on the bed saying, “Well, I can’t be here too long.” Qualls then testified that he got undressed, got into bed, and had sexual intercourse with her. He stated that at no timé did he threaten her, and that she undressed herself voluntarily. Later Qualls put on his trousers, and came into the kitchen. The woman followed a few minutes later, and said, “Where’s my coffee?” At that time she was completely nude. Qualls testified that the woman later left telling them that she could catch a bus home.

Claimant, Matthew C. Moore, testified that during the time the woman was in their apartment he asked her if she wanted to phone her home, and she said that she didn’t. He further testified that, when Qualls went to the bathroom, she suggested to him that they go into the other room together, which they did. She kept requesting him to go to bed with her, which finally he did. He stated that he had sexual intercourse with the woman once, but that he never threatened her, struck her, or used any type of force towards her. At one time during the period in question, Moore testified that the woman came into the kitchen, and asked him if he had a cigarette, and he said, “No.” He then testified that he went out to purchase some cigarettes, leaving the door unlocked. When he returned, the door was still unlocked.

Edward Day testified on behalf of claimants that he was employed at Al’s Celebrity Lounge located at 823 East 39th Street, Chicago, Illinois, ás a bartender and manager. He testified that at about 2:30 in the morning on April 25, 1959, a white man and a white woman came into the place and sat down. He made it a point to watch them because they were the only white people in the Lounge, everyone else being colored. Claimant Qualls came in about 15 minutes later, and joined them at the bar. The white man ordered a round of drinks, and paid for them. They sat there for about 10 minutes, then all three left. Edward Day identified Isabel Preusser as the white woman who was in APs Celebrity Lounge on April 25, 1959.

Controverting the testimony of claimants was the testimony of Isabel Preusser who testified on behalf of respondent that on the morning of April 25, 1959, at about 2:00 A.M. she went with her husband in their automobile to 39th and Cottage Grove Avenue, Chicago, Illinois, to purchase some barbeque ribs. When they arrived at the establishment they got out of their car, and found that the place was closed. When they returned to their car two men came up to her husband’s side of the vehicle, pulled him out, and said something. He pulled himself away and ran. At that time he said, “Lock the door.” She then testified that Qualls came up to her side of the vehicle, and said, “I’ll take you to your husband.” He took her out of the car, and walked her toward a gas station where her husband had gone to call the police. He grabbed her arm while he was walking with her. She stated that she did not walk with him of her own free will. At South Park Avenue Qualls hailed a cab, which stopped. He opened the door, took her hand, and put her in the cab. When asked why she didn’t speak to the cab driver about her predicament, she gave as a reason, that he was colored also, the same as Qualls. They left the cab and went to Qualls’ apartment. The door was opened by claimant Moore. Inside the apartment they took her into the kitchen. They asked her to sit down, and gave her a cup of coffee, which she took because she was frightened and nervous. She told them she would like to go home. Qualls told her to go into the other room, and take her clothes off. When he arrived in the bedroom he laid the open knife on the dresser, and stood by it as she took off her clothes. He then ordered her to lie down on the bed, and he took off his clothes, and had sexual relations with her. When he finished he laid on the bed beside her, and then claimant Moore had sexual relations with her. When he was through, Qualls again had sexual intercourse with her. Both men alternated in having sexual intercourse with her over a period of two or three hours. She testified that she did not willingly permit these acts, and that at one time Qualls hit her in the face, and threatened her that “she could easily be found cut up in an alley.” She said that she was afraid to use the telephone in the apartment because there was always somebody standing near it. Also there were two knives lying in front of the telephone, a white handled one and another. She made no attempt to leave the apartment because someone was always near her. She said that she never told claimants that she did not want to have intercourse with them, but did tell them that she wanted to go home to her children, but Qualls would not listen. She said she begged claimant Moore to let her go home, and finally he agreed. She told him that she didn’t have any car fare, and he gave her fifty cents. She further testified that Moore did not leave the apartment at any time while she was there, and she never asked Moore to purchase cigarettes for her. She took a bus home and found that the babysitter had taken her children to her mother-in-law. She then went to her mother-in-law’s home, which was a block away, and told her what happened. She was then taken to the police station where she reported the incident.

She testified further that, when she was walking down the street with claimant Qualls, he threatened her with an open knife, which was approximately four or five inches in length.

Officer Raymond Krall, who was called to testify on behalf of respondent, stated that, on April 25, 1959, at about 8:00 A.M., Isabel Preusser came into the Prairie Avenue Station, and reported that she had been kidnapped and raped. He and several other officers went to the house where the incident occurred, and saw claimmant Moore coming down the stairs. Mrs. Preusser identified him as one of her assailants. The officers then went into the apartment, where they found claimant Qualls asleep, and arrested him. In the apartment they found a pearl handled knife, which had a blade about four inches in length.

In two previously decided cases, Monroe vs. State of Illinois, opinion No. 4913, and Jonnia Dirkans vs. State of Illinois, opinion No. 4904, this Court has held that one of the primary issues to be determined in a case brought under Section 8C of the Court of Claims Act is whether the claimant was innocent of the crime for which he was imprisoned. The burden is on the claimant to prove by a preponderance of the evidence that the act for which he was wrongfully imprisoned was not committed by him. Claimant must prove his innocence of the “fact” of the crime.

In this case claimants seek to prove their innocence of the crime for which they were imprisoned by their own uncorroborated testimony to the effect that Isabel Preusser voluntarily submitted to the acts of sexual intercourse with them, and that there was no force or threats of force exerted on Isabel Preusser.

The quantum of proof, which claimants must present to this Court to prove their innocence of the crime for which they were imprisoned thereby entitling them to an award of damages from the State of Illinois for time unjustly spent in prison, is greater than the proof required to convince a Court that there was a reasonable doubt as to their guilt of the crime. In the first instance they must prove their innocence of the “fact” of the crime by a preponderance of the evidence, while in the second instance they must only present sufficient evidence to raise a reasonable doubt of their guilt of the crime charged.

It is the opinion of this Court that claimants have failed to prove by a preponderance of the evidence that they are innocent of the “fact” of the crime for which they were imprisoned. It is the further opinion of this Court that the Legislature of the State of Illinois did not intend, when it enacted Sec. 8C of the Court of Claims Act, that this Court make awards to claimants whose only proof of their innocence of the “fact” of the crime is their own uncorroborated testimony.

The claims of Louis Qualls and Matthew C. Moore are hereby denied.