text:
    (No. 5013
    Raymond L. Farber, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1965.

    Wolslegel and Armstrong, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward G. Finnegan, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Raymond L. Farber, seeks recovery for loss of wages for the period of February 20, 1961 to June 30, 1961, incurred when he was suspended and discharged from his duties as School Principal I at the Illinois Industrial School for Boys, Sheridan, Illinois.

The stipulation entered into by and between the parties is as follows:

“That claimant herein, on September 2, 1953, was certified and appointed to the position of School Principal I at the Illinois Industrial School for Boys, Sheridan, Illinois; that claimant continued to perform the duties of said position until February 20, 1961, at which time a copy of written charges seeking a thirty day disciplinary suspension pending discharge was personally served upon claimant.
“That on March 1, 1961 claimant filed a notice of grievance with Oliver J. Keller, Jr., the then Chairman of the Illinois Youth Commission, with respect to the aforesaid thirty day disciplinary suspension pending discharge.
“That on March 6, 1961 claimant filed a notice of appeal with the Illinois Civil Service Commission of the aforesaid thirty day disciplinary suspension pending discharge.
“That on March 20, 1961 a copy of written charges seeking discharge, filed by the then Chairman of the Illinois Youth Commission, Oliver J. Keller, was served upon claimant, Raymond L. Farber, said discharge to be effective on March 20, 1961.
"That thereafter, and within fifteen days following receipt of said written charges seeking discharge, claimant, by and through his attorneys, Wolslegel and Armstrong, made written requests of notice of appeal to the Illinois Civil Service Commission for a hearing in defense to the said written charges filed against said claimant.
“That, pursuant to said notice of appeal of said charges seeking discharge, a hearing was held in the Conference Room, 21st Floor, 160 North La Salle Street, Chicago, Illinois, on May 23, 1961, commencing at 9:30 A.M. before the Honorable John Morrow, Hearings Referee for the Illinois Civil Service Commission.
“That on September 13, 1961 the Hearings Referee, the Honorable John Morrow, handed down his decision stating that claimant, Raymond L. Farber, be, and he is hereby retained in his position as School Principal I at the Illinois Industrial School for Boys, Sheridan, Illinois, with full compensation.
“That on September 20, 1961 the Illinois Civil Service Commission unanimously concurred in, and adopted the findings and decision of said Hearings Referee, and certified said decision to the Director of the Department of Personnel, State of Illinois, for enforcement.
“That on May 23, 1961 claimant, through his attorneys, requested by letter that the Director of the Department of Personnel, State of Illinois, review the grievance as to the aforesaid thirty day disciplinary suspension in accordance with Department of Personnel Rule 25.
“That on June 13, 1961 the Director of the Department of Personnel, by letter, stated that the Department would be bound by the ruling of the Civil Service Commission as to the said thirty day disciplinary suspension, insofar as accrual of pay and other benefits were concerned as to said period.
“That on October 27, 1961 the Director of the Department of Personnel of the State of Illinois, by letter, recommended to the now Chairman of the Illinois Youth Commission, John A. Troike, that claimant, Raymond L. Farber, be paid his regular monthly salary from February 20, 1961, to March 20, 1961, the period of said disciplinary suspension.
“That claimant, by virtue of and because of his aforesaid retention in his position as School Principal I at the Illinois Industrial School for Boys at Sheridan, Illinois, became and was entitled to back pay from the date of said reinstatement to February 20, 1961.
“That claimant’s monthly pay amounted to a gross sum of $660.00 per month prior to July 1, 1961; and a gross sum of $700.00 per month after July 1, 1961.”

Doctor Arthur E. Wright, Superintendent of the Illinois Industrial School for Boys at Sheridan, Illinois, testified that claimant would have been paid his salary from February 20, 1961 to June 30, 1961, if the appropriation had not lapsed, and that for the time subsequent to June 30, 1961 claimant had been paid his salary in full.

Claimant testified that he applied for employment elsewhere on a number of occasions, but was unable to obtain a position; that he was not employed, and earned no money during the time he was suspended and discharged, and that he received no salary during the period of February 20, 1961 to June 30, 1961. This claim is for claimant’s gross salary for the period from February 20, 1961 to June 30, 1961.

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

There is no evidence of failure to mitigate damages for the period involved in the instant case.

Claimant is hereby awarded the sum of $2,860.00.


source: Caselaw Access Project

author: Dove, J.

license: Public Domain

text:
    (No. 5036
    Lester Woodrum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1965.

    Eugene L. Davison, Attorney for Claimant.
    William G. Clark, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Lester Woodrum, seeks recovery herein for damages sustained in the years of 1960 and 1961, as a result of loss of pasture and forage, and resultant expenditures for hay and feed, as well as for losses incurred in the sale of his cattle and sheep. From the transcript of evidence, it appears that in March of 1960 claimant leased for farming and residential purposes by written lease a farm in McLean County, which consisted of 100 acres, which lease by its terms expired on March 1, 1961. It further provided for a rental charge of $1,200.00 in cash, which sum was paid by claimant to the lessor, one Asa Arthington. Claimant was in-possession of the premises during the term of the lease, except as his possessive rights were interfered with by respondent.

Sometime in June of 1960 the lessor, Asa Arthington, sold the premises involved herein to the Department of Conservation of the State of Illinois, but nothing in the deed of conveyance indicated the rights of claimant.

It appears from the record that the lessee intended to winter livestock, consisting of 11 head of cattle and 23 head of sheep, on the com forage, grass waterways and pasture land on the farm.

On December 12, 1960, without regard to claimant’s rights under his unexpired written lease, and disregarding claimant’s protests, the contractor for the Department of Conservation entered on the premises with a bulldozer, and pushed down the fences enclosing the corn forage, grass waterways and pasture. Claimant was forced to put the livestock in a lot to keep them from roaming around at will. He was not otherwise disturbed in the possession of the farm, and continued to occupy and use the house and barn. His principal means of livelihood was employment as a heavy equipment operator, and he lived with his wife and two children on the farm.

As stated in American Jurisprudence: “From every direct invasion of the person or property of another the law infers some damage without proof of actual injury; hence in an action of trespass, the plaintiff is always entitled to at least nominal damages. . . .” 52 Am. Jur. 872, Sec. 47— Trespass.

While the evidence in this case leaves much to be desired, there is not a total failure of proof so far as damages are concerned. An award is, therefore, made for feed and hay purchased in the amount of $530.00, and for the loss on the sale of the livestock in the amount of $437.50.

The claim of Lester Woodrum is, therefore, allowed in the sum of $967.50.


author: Perlin, C.J.

text:
    (No. 5094
    Larry McCauley, A Minor, by his Father and next friend, Charles McCauley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1965.

    Wiseman and Hallett, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, Larry McCauley, a minor, in this action filed by his father, Charles McCauley, seeks recovery of $5,000.00 for injuries suffered on June 11, 1962, when claimant, then ten years old, slipped and fell on the steps of the McCambridge Viaduct, which was built and is maintained by the Division of Highways of the State of Illinois.

Claimant contends that respondent failed to maintain the steps of the viaduct in a suitable and safe condition by permitting debris to accumulate and remain on the steps, which, as a result of respondent’s negligence, caused claimant to slip on the stairs, fall into the path of an automobile and sustain injuries.

Claimant, Larry McCauley, testified that on the day of the accident he had walked about fifteen blocks from his home to go swimming at the Recreation Center in Madison, Illinois with his sister, Charlene, and some other children. He had climbed upstairs on the viaduct, and then crossed the viaduct, which passes over railroad tracks, and has a street and pathway to walk on. He was in the pool when it started raining, and the children picked up their clothes, and started walking back home. To reach home they had to cross over the viaduct and descend the stairs. Claimant was wearing his swimming trunks, and carrying his other clothes and shoes in his right hand. He stated he was holding the railing with his left hand, as he walked down the stairs. It was raining heavily. The steps were wet, muddy, and slippery. When he reached the fifth or sixth step from the bottom he slipped, but does not know exactly what he slipped on.

A photograph submitted as claimant’s exhibit No. 4 showed the steps with debris on them. Claimant testified that the steps had gravel, sand, small rocks, and paper on them, and that the photograph showed the condition of the steps when he fell. He was walking more slowly than usual. He had used the steps about three or four hundred times before, but never in the rain. He lived about a block and a half away from the viaduct. As he descended, one child was in front of him, with about four others behind him, but not close enough to touch him. Claimant said he was going more slowly than his usual speed because he was scared of going down the stairs.

After he slipped, he remembered nothing until he awoke in a restaurant where he was put in an ambulance and taken to the hospital.

Claimant spent three days in the hospital, and his injuries were described as a fractured skull, head split open, stitches in chin and elbow, and sprained left ankle. He testified that, whenever he gets warm, his eye swells, and, whenever he reads, he sees a fine down his eye. He had not seen a doctor with regard to the eye condition.

Charlene McCauley, age 13 at the time of the hearing, testified that she was Larry McCauley’s sister, and had accompanied her brother to the pool on the day he was injured. She stated that there was no shorter way to get to the swimming pool, and it was necessary to use the stairs to cross the railroad tracks.

At the time of the accident, according to Charlene, there were mud, cinders, paper, little rocks and dirt on all the steps. It was raining heavily when they started down the steps. She saw her brother just before he fell. He was walking with his left hand on the rail. When he fell he rolled to the middle of the road. He was holding on to the rail when he fell, but then let go of it and his clothes. The bottom two steps were muddier than the other steps. On the day of the accident it was not easy to walk on the steps, and one of the other children slipped and almost fell.

Charles McCauley, claimant’s father, testified that, in the three years he had lived in the neighborhood, he had never seen the steps clean. According to McCauley, three days after the accident the steps were dirty with trash, mud, cinders, rocks, fresh asphalt, broken glass, and fresh rocks. The only maintenance, which McCauley had noticed in the three years he had lived there, was the cutting of the grass about twice a month. McCauley had gone up and down the stairs in question many times, and described the difficulty in descending them as follows: “It is just straight down, and seems like it pulls you down, as you are coming down; and, with cinders on there and all that paper and trash, you can’t watch where you step, and you slip.”

McCauley further testified that Larry saw the doctor three times after he left the hospital, but had not seen a doctor with regard to his complaints that his face puffs up when he gets hot, and that he sees a line running through his eye. McCauley stated he does not have enough money to take Larry to a doctor.

Norman L. Soehnlin testified that he was driving a station wagon at about 2:00 P.M. on June 11, 1962, and was stopping for a sign about thirty or forty feet past the viaduct steps. It was raining hard. His brakes were on, and he was moving about five or ten miles per hour when he saw a flash on the ground to his left, which looked like a boy, and it was a boy. He tapped him with his bumper, but did not run over him. At that time he was about a foot past the bottom of the stairs. The boy looked like he was diving from the stairs, and sliding across the road on his stomach and had landed in a prone position. He was bleeding about the eyes.

Marion E. Norris, District Maintenance Engineer for the Illinois Division of Highways, East St. Louis, testified that McCambridge Viaduct was built and is maintained by the Illinois Division of Highways. It includes about forty-five steps with a seven and one-half inch riser and a twelve inch tread. The steps are approximately four feet in width, with a slope of two feet horizontally to one foot vertically. A concrete platform at the bottom of the stairs is five feet long and five feet wide. The witness did not know the condition of the steps at the time of the accident, although it is a departmental policy to clean the steps every spring when the bridge deck is cleaned. He did not know when the steps in question were cleaned. Respondent produced no further witnesses.

In order to recover, claimant must prove by a preponderance of evidence (1) that the minor claimant exercised that degree of caution and freedom from contributory negligence as children of like age, intelligence and reason would have exercised; (2) that respondent was negligent in its maintenance of the stairway leading to the sidewalk over the viaduct; and, (3) that the negligence of respondent was the proximate cause of the injuries sustained.

Both claimant and his sister testified that he was proceeding slowly down the steps, and was holding on to the railing with his left hand. No evidence has been introduced, which would suggest that claimant was using less than due care commensurate with his age, as he descended the stairway. There was apparently no nearby alternate route, which the children could have taken across the railroad tracks. It was not unreasonable for a ten year old boy to remove his shoes in the hard rain, when he was accustomed to going without them much of the summer.

Respondent has offered no evidence to counteract the testimony of Charles McCauley that to his knowledge the steps had never been cleaned in the past three years, nor does respondent deny that the steps were covered with debris prior to the accident. This condition remained uncorrected despite frequent visits by respondent’s agents when they were cutting grass in the area. Therefore, respondent should have known that the dangerous condition existed, and should have taken reasonable care to remove the debris, which would prove hazardous to persons descending the long flight of stairs.

Although respondent contends that claimant has failed to prove the proximate cause of his fall, it can be reasonably inferred that, if someone is exercising care and holding on to the railing of a stairway covered with wet debris, the condition of the stairway caused the fall. Holsman vs. Darling State Street Corp., 6 Ill. App. 2d 517, 128 N.E. 2d 581 (1955).

Claimant, Charles McCauley, has testified that the minor claimant has not seen a doctor with regard to the swelling in the area of his eye, and the fine he sees through his eye, because he cannot afford medical care. In the absence of any medical evidence, the Court is unable to assess damages with regard to this aspect of the injury claim.

Claimant did establish that Larry suffered an injury to his head, and at the time of the hearing the record noted that he had a two inch scar over his eye, a scar on his chin, and one on his elbow. The hospital and doctor bills were covered by amounts of $101.35, which were paid from an accident and health policy carried by Charles McCauley, and $153.35 for executing a covenant not to sue Norman L. Soehnlin.

Claimant is hereby awarded the sum of $750.00.


author: Pezman, J.

text:
    (No. 5058
    Erika Gitner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1965.

    Rosengard and Hecht, Attorneys for Claimant.
    William G. Clark, Attorney General; Samuel I. Neiberg and Gerald S. Grobman, Assistant Attorneys General, for Respondent.
   Pezman, J.

From the evidence introduced by claimant at the hearings herein, it appears that Dempster Street in Niles, Illinois is a four-lane highway for two-way traffic. It is known as State Aid Route No. 123, and, as such, is under the jurisdiction and control of the State of Illinois. On April 12, 1962, at approximately 3:30 P.M., the weather in Niles, Illinois was drizzling. In the section of the highway from about 30 to 90 yards west of the Milwaukee Road overpass on Dempster Street the stated speed limit was 45 miles per hour. At that time and place claimant, Erika Gitner, was driving a 1959 Oldsmobile vehicle in an easterly direction on State Aid Route No. 123. She was in the east bound inner lane (that lane closest to the center line), and was traveling at a speed of about 35 miles per hour. She noticed nothing unusual about the roadway in front of her vehicle. There were no holes, excavations, craters, warning signals or devices apparent in either of the two east bound lanes. There were other vehicles proceeding east in front of her, occupying the two lanes available for east bound traffic. These vehicles passed over that portion of the roadway where the accident herein complained of occurred without any unusual events.

As the claimant’s automobile passed over that portion of the roadway approximately 30 yards west of the Milwaukee Road overpass, the roadway suddenly and without warning collapsed. This collapse caused Mrs. Gitner’s vehicle to veer temporarily out of control in a northerly direction into the path of the oncoming west bound traffic. Mrs. Gitner quickly pulled her car hack to the right (south), and it unavoidably collided with the south wall of the Milwaukee Road overpass. Upon inspection of that portion of the roadway where the collapse occurred, a crater approximately 12 feet long and 5 feet wide was found. The evidence does not show how deep the crater was.

After this occurrence claimant experienced a feeling of fright and shakiness. She was taken home by two Illinois State troopers, who were traveling behind her vehicle at the time of the accident. Upon arriving home Mrs. Gitner recovered somewhat from her feeling of nervousness and fright, and then began to experience severe pain in various parts of her body, including her neck, shoulder, back, head and arms.

The next day she was taken to the offices of Drs. Franz Steinitz and Henry Heller, 3653 West Lawrence, Chicago, Illinois, by her husband for an examination. The examination revealed pain and tenderness of the cervical spine, right trapezius muscle and dorsal spine, particularly in the area of the 8th, 9th, 10th and líth vertebrae. X-rays of Mrs. Gitner revealed a loss of normal lordosis in the cervical spine. The treatment rendered to Mrs. Gitner consisted of analgesics, diathermy, massage and B-12 injections. It was necessary for the doctors to render treatment, as described, to claimant on twelve different occasions during the period from April 18, 1962 to May 26, 1962. Thereafter she received a bill for $158.00, which included charges for the examination, x-rays and treatments. At the time of the hearings Mrs. Gitner was still experiencing, to some degree, the symptoms for which she was treated by Drs. Steinitz and Heller.

In addition to the medical expense, claimant had to pay $150.00 for a full-time maid to stay at her residence for two weeks after the accident, and do the housework claimant was unable to do herself.

Claimant contends that her evidence is sufficient to raise a rebuttable presumption or inference of negligence on the part of respondent under the doctrine of res ipsa loquitur, and that she is entitled to an award of $10,000.00, inasmuch as respondent introduced no evidence to. overcome or rebut the presumption. Respondent on the other hand takes the position that the doctrine of res ipsa loquitur has no application to a public authority; that claimant must show that the State had either actual or constructive knowledge of a dangerous condition; and, that claimant has failed to maintain her burden of proof of such actual or constructive knowledge. There is no claim by anyone, or any evidence, that claimant was guilty of contributory negligence. The issue presented, therefore, is whether the doctrine of res ipsa loquitur is applicable.

The Court is of the opinion that the doctrine of res ipsa loquitur is applicable to a public authority in Illinois, and should be applied in this case. Charles M. Kenney, Administrator of the Estate of Steve Bolf, Deceased, vs. State of Illinois, 22 C.C.R. 247; Finch vs. State of Illinois, 22 C.C.R. 376; Roberts vs. City of Sterling, 22 Ill. App. (2d) 337, 161 N.E. (2d) 138; Bolger vs. City of Chicago, 198 Ill. App. 123; Bollenbach vs. Bloomenthal, 341 Ill. 539, 173 N.E. 670. Claimant has clearly shown, we think, that the road in question was under the control and management of the State, and that the occurrence was such as in the ordinary course of events would not have happened if due care had been exercised by respondent. Claimant has, in our opinion, established a prima facie case of negligence on the part of respondent, thus shifting the burden of proof to respondent. Roberts vs. City of Sterling, supra; Bollenbach vs. Bloomenthal, supra; McCleodus Nel-Co. Corp., 350 Ill. App. 216, 112 N.E. (2d) 501. Respondent, having failed to produce any evidence, has failed to rebut the presumption raised by claimant’s evidence.

With respect to the amount of damages to which claimant is entitled, there is no dispute as to the necessity for or reasonableness of the expenditures for medical care and hired help in her home. The evidence of her pain and suffering is strong, but there is little evidence of permanent injuries. It is our opinion, then, that an award to claimant in the amount of $750.00 to cover her medical expenses, damages, and pain and suffering is reasonable under all the facts and circumstances.

An award is hereby made to claimant in the amount of $750.00.


text:
    (No. 5071
    Martha Van Poucke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1965.

    Sinnett, Rink and Coryn, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Dove, J.

A complaint in this matter was filed in the Court of Claims on November 7, 1962, alleging that respondent, State of Illinois, owns, operates, maintains and controls an institution, known as the East Moline State Hospital, which is located at 100 Hill Crest Road, East Moline, Illinois. Further it is alleged that, on or about March 23, 1962, claimant, Martha Van Poucke, was a guest on the premises of said hospital; that at the time claimant was in the exercise of due care and caution for her own safety; that it was the duty of respondent to construct, maintain and repair said premises, so that persons rightfully thereon would not be injured; and, that respondent was then and there guilty of one or more of the following negligent acts or omissions:

(a) Failed to construct the sidewalk and steps on said premises in a safe and proper manner;
(b) Failed to maintain the sidewalk and steps on said premises in a safe and proper manner;
(c) Failed to repair the sidewalk and steps on said premises in a safe and proper manner;

That, as a direct and proximate result of one or more of the aforesaid negligent acts or omissions of respondent, the public sidewalk and steps directly in front of the main building on said premises were defective, cracked, loose and unsafe, thereby causing claimant to fall, and be thrown and hurled to said sidewalk and steps with great force and violence; that claimant was injured severely both internally and externally, and has been and will be prevented from attending to her usual and ordinary affairs and household duties; that she has expended, and will be compelled to expend, large sums of money; that no assignment or transfer of the claim of said Martha Van Poucke, or any part thereof or interest therein, has been made; that claimant has heretofore caused to be served upon the Secretary of State of the State of Illinois and the Attorney General of the State of Illinois notice of said claim in accordance with the provisions of the 1961 111. Rev. Stats; and, that claimant, Martha Van Poucke, prays for judgment in the sum of $12,224.25, in accordance with a bill of particulars attached to said claim.

From the testimony of claimant, it appears that, on March 23, 1962, she was at the East Moline State Hospital for the purpose of getting acquainted with the Superintendent, and to arrange with him for a dinner involving Mental Health. She had arrived at the hospital at approximately 2:00 P.M., and, after concluding her business, left the building at about 3:30 P.M. On her way out of the building she met Donald L. Gilliatt, Chief of Security for the hospital, and walked with him down the hall, out the front door, and down the steps. Claimant apparently stepped down to the middle step, which moved, and she fell down the steps and onto the sidewalk. She then was removed from the East Moline State Hospital to the Moline Lutheran Hospital, and was there treated by Dr. Henry Arp.

Mr. Gilliatt was called as a witness for claimant, and testified that on the day of the accident he was coming in the main door to the Administration Building, and that, as he reached the top of the second flight of stairs, he saw Mrs. Van Poucke. He returned to the first flight of stairs, and opened the door for her. As they carried on a conversation, both were standing on the second step on the outside of the building, until Mrs. Van Poucke stated to him that it was time for her to go. He stepped back, which caused the second step to move, and claimant lost her balance, fell down the steps, and onto the sidewalk. At the time of the accident he had been employed at the East Moline State Hospital for approximately four years, and during that period of time he had used the step in question many times. He had reported to his superiors, in writing, that the step was loose and in need of repairs. He further stated that since the date of the accident he had retired, and was no longer employed by the State of Illinois.

Dr. Konstantin D. Dimitri, Superintendent of the East Moline State Hospital, was called as a witness by the State. He testified that Mrs. Van Poucke came to his office on the day in question, and discussed her business with him. He did not see the accident, but was informed of her fall, and found her on the sidewalk at the bottom of the steps in front of the building.

In order to recover, claimant must prove by a preponderance of the evidence: (1) That she was in the exercise of due care and caution for her own safety; (2) that respondent was negligent in its maintenance of the steps; and, (3) that the negligence of respondent was the proximate cause of her injuries.

The evidence conclusively indicates that the step had been loose for a long period of time before the accident in question. The Superintendent of the hospital had been notified, in writing, of the defect, but nothing had been done to repair the broken step.

Dr. Henry Arp diagnosed the injuries to Mrs. Van Poucke as an impacted comminuted fracture of the cervical neck of the right humerus and a badly bruised and sprained back on the left side. She was in the Moline Lutheran Hospital from March 23 until May 19, 1962. A cast, which had been placed on her right arm, was removed after she had been in the hospital approximately three or four weeks. At the time of the hearing Dr. Arp was still giving her sedatives and sleeping pills. Dr. Arp testified that, in his opinion, Mrs. Van Poucke had suffered a permanent disability to her shoulder and arm as a result of the accident, and that her condition would improve only slightly in the future. He stated that claimant could not reach to her back to tie an apron or fasten her brassiere, and was unable to get her hand over her head.

The medical expenses incurred are as follows:

Dr. J. N. Bourque - x-rays..........................$ 25.00
Dr. Henry Arp.................................... 507.50
Moline Lutheran Hospital.......................... 1,541.75
Total......................$2,074.25

The Court finds that at the time of the accident claimant, Martha Van Poucke, was in the exercise of due care for her own safety, and, that respondent had notice of the dangerous condition of the step, and neglected to take the necessary precautions to prevent injuries to visitors entering or leaving the building.

The remaining question for the Court to decide is the amount of claimant’s damages. The medical expenses above set out total $2,074.25.

The Court believes claimant is entitled to an additional sum of $6,000.00 for pain, suffering, and impairment to her shoulder and arm.

An award is, therefore, made to claimant in the sum of $8,074.25.


text:
    (No. 5104
    Arthur F. Weiskopf, d/b/a J. F. Weiskopf and Son, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1965.

    Giffin, Winning, Lindner and Newkirk, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

On or about September 23, 1958, claimant, Arthur F. Weiskopf, doing business as J. F. Weiskopf and Son, submitted its offer to furnish the Division of State Fairs of the Department of Agriculture one 3 L V 7 S gas burner, complete with draft box and automatic pilot controls, for the total sum of $1,425.00. In addition, on October 27, 1958, claimant also presented an offer to install one gas burner, complete with draft box, automatic pilot controls, and all other necessary controls in a standby boiler in the basement of the Emerson Building, which, too, was located on the Illinois State Fair Grounds, as well as to remove the stoker, clean the standby boiler, and wire the controls thereof, all for the total sum of $1,270.00. Both offers were accepted by the Department of Agriculture, and claimant proceeded to perform all of the conditions contained therein. Statements were thereafter presented to the Division of State Fairs of the Department of Agriculture, but were denied. The amended complaint filed herein alleges that such services and materials were furnished, and that there is now due and owing claimant from respondent the total sum of $2,695.00.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

“It is hereby stipulated and agreed by and between claimant, Arthur F. Weiskopf d/b/a J. F. Weiskopf and Son, by its attorneys, Giffin, Winning, Lindner and Newkirk, and respondent, State of Illinois, Department of Agriculture, by William G. Clark, its Attorney General, that the report of the Department of Agriculture, signed by H. E. Paxton, General Auditor, dated January 5, 1965, which has been filed in this cause pursuant to Rule 15, shall constitute the record in the case.
“It is further stipulated and agreed that this claim arises from two contracts duly entered into by claimant and an authorized employee of the said Department of Agriculture, each contract calling for the sale of merchandise or the furnishing of installation services referred to in the said Departmental Report; both of said contracts aggregate in total the sum of $2,695.00. The said sum was not paid by the Department solely because of the lapse of the available appropriations.”

A report of the Department of Agriculture, signed by H. E. Paxton, General Auditor, acknowledges that each of the estimates and offers were duly accepted by the Department of Agriculture. It further notes that the equipment was furnished and proper installations made, and that the invoices therefor were first received after the appropriation from which payment could have been made had lapsed. The report concludes with the following paragraph:

“The said materials and services hereinabove specified were ordered by persons having proper authority, the said materials were received in good condition, and the said services were rendered in good workmanlike fashion. The said charges are true and correct, and no part of them have been paid. Claimant’s invoices in the total amount of $2,695.00 would have been vouchered and paid in the regular course of business, if they had been submitted to the proper office at the appropriate time. An appropriation had been made by the State Legislature covering this material, and, as of the date of the lapse of the appropriation, there was an unobligated balance of sufficient amount in the appropriation from which claimant’s invoices could and would have been paid.”

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. Rockford Memorial Hospital, Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Arthur F. Weiskopf d/b/a J. F. Weiskopf and Son, is, therefore, hereby awarded the sum of $2,695.00.


text:
    (No. 5187
    Goedde Lumber Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1965.

    Wagner, Conner, Ferguson, Bertrand and Baker, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

On or about May 29, 1957, claimant entered into a lease with the Illinois Public Aid Commission pertaining to part of the premises owned by claimant in East St. Louis, Illinois. The lease provided in part that claimant would “furnish light and water until such time as a refrigeration unit or other installation requiring an unusual use of water and electricity was installed, at which time the rental was to be adjusted for electricity and water used above normal requirements.” The Illinois Public Aid Commission thereafter installed in and on the leased premises refrigerators, coolers, freezers, air conditioners, blowers, and other equipment requiring an unusual use of electricity above the normal requirements for electric light. Respondent maintained said equipment in and on the leased premises during all of the term of said lease, which commenced on July 1, 1957 and terminated on June 30, 1959. The lease was subsequently renewed for the period commencing July 1, 1959 and terminating on June 30, 1961, and again for the period beginning on July 1, 1961 and ending on June 30, 1963.

In its complaint, claimant alleges that it incurred additional electrical expenses during the running of the lease as follows:

July 1, 1957 - June 30, 1958......................$ 230.85
July 1, 1958 - June 30, 1959 ...................... 340.71
July 1, 1959 - June 30, 1960...................... 251.86
July 1, 1960 - June 30, 1961...................... 481.88
July 1, 1961 - June 30, 1962 ...................... 444.26
July 1, 1962 - June 30, 1963...................... 743.66
$2,493.22

Claimant further alleges that there is now due and owing it Rom respondent the total sum of $2,493.22, as indicated above, and brings this action to recover said amount.

A written stipulation was entered into between claimant and respondent by their respective attorneys, which in part is as follows:

“The report of the Illinois Department of Public Aid to the Illinois Attorney General, dated January 5, 1965, (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.
“Claimant has waived, and does hereby waive any and all claim, as alleged in its petition, to interest on the claim from and after October 28, 1963, or any other date, and the parties agreed that leave may be granted claimant to amend its petition by interlineation to delete any and all reference to or demand for any such interest.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $2,493.22,”

The report of the Department of Public Aid, referred to in the stipulation, and signed by Gershom Hurwitz, Assistant to the Director, acknowledges the allegations contained in claimant’s petition, and states that no part of said claim has been paid. The concluding paragraph of this Departmental Report states: “The Department admits that the amount of the claim of $2,493.22 is a proper and a just claim. The Department denies any liability for interest, as the petitioner did not file any statement of claim until October 28, 1963, and admitted it was due to his oversight.”

Section 22 of the Court of Claims Act in part provides as follows: “Every claim cognizable by the Court, arising out of a contract and not otherwise sooner barred by law, shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within five (5) years after it first accrues.” An examination of claimant’s petition indicates that the first two amounts for $230.85 and $340.71 would have accrued on June 30, 1958 and June 30, 1959, respectively, and would, therefore, be barred by the limitations contained in Section 22 of the Court of Claims Act.

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. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case except with relation to the amounts that have been barred by Section 22 of the Court of Claims Act.

Claimant, Goedde Lumber Company, an Illinois Corporation, is hereby awarded the sum of $1,921.66.


text:
    (No. 5211
    Siegert-Mathewson Medical Group, A Partnership, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1965.

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

On May 6, 1964, claimant, Siegert-Mathewson Medical Group, A Partnership, presented its statement to the Department of Public Aid for medical services rendered one Rachel Green. Claimant alleges that its statement for services was not submitted at an earlier date, because of failure of the Department of Public Aid to notify claimant that the said patient was subject to the provisions of its program for Assistance to the Medically Indigent Aged, and, further, that no part of its claim has been paid. Thereafter, on January 21, 1965, a complaint in this matter was filed in the Court of Claims. It contains a request for payment of the charges for medical services furnished said Rachel Green for the period of April 26, 1963 to, on or about May 26, 2963, inc.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which, in essence, supports the position of claimant in this matter. It indicates that claimant did furnish the services to one Rachel Green, and that, according to the fee schedule of payments established by the Department of Public Aid of the State of Illinois, the value of such services was in a total amount of $435.00. The stipulation reflects the further fact that the appropriation from which payment could have been paid had lapsed prior to the time the statement was submitted. These facts are not refuted by the Department of Public Aid in the Departmental Report filed in this matter on February 19, 1965.

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. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; Memorial Hospital of Du Page County, A Corporation, vs. State of Illinois, Case No. 5197, opinion filed January 12, 1965. It appears that all qualifications for an award have been met in the instant case.

Claimant, Siegert-Mathewson Medical Group, a Partnership, is, therefore, hereby awarded the sum of $435.00.


text:
    (No. 5213
    Kenneth M. Pitcher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1965.

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

During the months of February, March, April, May, and June, 1963 claimant, Kenneth M. Pitcher, incurred certain expenses for travel in the course of his duties as an employee of the Illinois Public Aid Commission. Because of the lapse of the appropriation from which said expenses could have been paid, claimant has now filed his claim in this Court for reimbursement.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

"The report of the Illinois Department of Public Aid to the Illinois Attorney General, dated April 6, 1965, (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.
"Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $1,720.57.”

The report of the Department of Public Aid, signed by Gershom Hurwitz, Assistant to the Director, which is referred to in the said stipulation, acknowledges that the expenses were incurred by claimant in the performance of his duties for the Illinois Public Aid Commission, and states that they were not paid by the Department of Public Aid for tire reason that the travel vouchers were not presented, scheduled, and processed until after the appropriation from which payment could have been made had lapsed.

This Court has held in previous decisions that where the evidence shows that the only reason the claim was not paid was due to the fact that, prior to the time that a statement was presented, the appropriation lapsed, an award will be made. Ray S. Thompson, Claimant, vs. State of Illinois, Respondent, 24 C.C.R. 487.

Claimant, Kenneth M. Pitcher, is, therefore, hereby awarded the sum of $1,720.57.


text:
    (No. 5214
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1965.

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

Claimant, The County of Randolph, seeks reimbursement of $17,412.50, representing expenses incurred by claimant and its officials for services performed in connection with court proceedings involving petitions for Writs of Habeas Corpus by the inmates of the Illinois State Penitentiary and the Illinois Security Hospital. These are penal and charitable institutions of the State of Illinois. Roth are located within the County of Randolph.

The parties have stipulated as follows:

“That divisions of the Illinois State Penitentiary and Illinois Security Hospital, the same being penal and charitable institutions of the State of Illinois, are situated in Randolph County, Illinois;
“That petitions of Writs of Habeas Corpus in forma pauperis by inmates of the Illinois State Penitentiary and Illinois Security Hospital, not residents of or committed from Randolph County, are frequently filed in the Circuit Court of Randolph County;
“That by virtue of certain statutory provisions (Chap. 65, pars. 37, 38 and 39, 1963 Ill. Rev. Stats.) the State of Illinois is required to assume and to pay the necessary expenses, including all costs and fees of county officers, arising from such petitions for Writs of Habeas Corpus;
“That, as provided in Chap. 81, Sec. 81, 1963 Ill. Rev. Stats., a fee of $1.00 is charged on each civil case when pleading is filed to defray costs of law library;
“That attached to the complaint as claimant’s exhibit A is a list of the petitions for Writs of Habeas Corpus in forma pauperis filed in the Circuit Court of Randolph County between the dates of November 8, 1962 and January 6, 1965, inc., which list is a true and correct itemization of said petitions filed between the said dates, and, further, that in all cases on the said exhibit A, wherein amounts are itemized as Sheriff’s fees, State’s Attorney’s fees and law library fees, Writs of Habeas Corpus were issued and hearings held before the Circuit Court of Randolph County;
“That claimant, County of Randolph, claims in this action, all amounts to which it is entitled in the cases listed in exhibit A for filing fees, Sheriff’s fees, State’s Attorney’s fees and law library fees, and, further, that a similar claim based upon similar items of expenses, but arising out of other cases, was presented by the County of Randolph and determined by this Court in an opinion filed June 24, 1955, in volume No. 22 of the Court of Claims Reports, page 205; and again in opinion filed July 24, 1958, in volume No. 22, of the Court of Claims Reports, page 733; and again in opinion filed May 23, 1959, in volume No. 23, Court of Claims Reporte, page 136;
"That none of the petitioners set forth in exhibit A attached to the complaint herein were residents of or committed from Randolph County, Illinois;
“That no claim has been presented to any State Department other than the filing of the complaint herein, and that there has been no assignment of any of the items herein claimed;
“That the Board of County Commissioners of Randolph County adopted a resolution on February 15, 1962 imposing an additional fee of $1.00 upon all cases filed in the Circuit Court of Randolph County, Illinois, for library purposes, as authorized by the 1961 Ill. Rev. Stats., Chap. 81, par. 81.”

The Commissioner’s Report states that both he and an Assistant Attorney General of the State of Illinois appeared in the Circuit Court of Randolph County on March 25, 1965, and, together with the State’s Attorney of Randolph County, examined the entries in the court docket. The Commissioner found that the amounts prayed for in the complaint are true and accurate, and that claimant is entitled to be paid the total sum of $17,412.50.

We, therefore, award The County of Randolph the sum of $17,412.50.


text:
    (No. 4735
    Robert S. Kay and Janet Kay, Claimants, vs State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    Friedlund, Levin and Friedlund, Attorneys for Claimants.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Dove, J.

The complaint in this case was filed on August 1, 1956, and arises out of a collision, which occurred at 7:00 A.M. on July 5,1955 at the intersection of Cicero and Grand Avenues in the City of Chicago, Illinois. Cicero Avenue runs in a north-south direction, and Grand Avenue runs east and west. The traffic is controlled at this intersection by the usual red, yellow and green electric traffic signals.

Robert Kay testified that he was a certified public accountant at the time of the accident. On the date of the accident the weather was clear, and the sun was shining brightly. Claimant was driving his 1953 Chevrolet Sedan in a southerly direction on Cicero Avenue in the innermost lane of travel. He was accompanied by his wife, who was sitting in the front seat on the passenger side.

As the traffic signal turned red for his lane of traffic, claimant stopped his car at the intersection, and noticed cars were stopped across the intersection on Cicero Avenue waiting to proceed north. While he was making his stop he noticed a National Guard truck going through the intersection, and, as he glanced to his left down Grand Avenue, he observed two other National Guard trucks coming west, which were traveling at a speed of approximately 35 to 40 miles an hour. About the time the traffic lights governing west-bound traffic changed to yellow, the second truck went through the intersection, and the third truck was 50 to 75 feet behind the second truck. After the north-south lights had changed to green, an Oldsmobile, which was being driven by William Rawle, proceeded north from the south side of the intersection, and, as the Rawle car arrived at the center of the intersection, it was struck by the truck driven by Sergeant Lucente. As a result, the Rawle vehicle was shoved into the front of claimant’s car.

Claimant, Robert S. Kay, testified that his left arm and leg were bruised, his mouth was lacerated on the inside and outside, and his nose was broken. He and his wife were taken to St. Anne’s Hospital, where twenty-five stitches were applied to cuts about his mouth. He still has a visible scar Vz inch below his lower lip, which is 1 to 1% inches long. He further testified that since the accident he has had frequent colds and a sinus condition. The discomfort of his left arm and leg lasted for two weeks, and he experienced frequent headaches, which were rather severe for the first week or two. He also testified that he could not eat solid foods for one week, but returned to normal eating habits within four weeks; and, that he was unable to return to work for four days, but continued to receive his salary while he was absent.

Janet Kay testified that on the day in question she was a secretary for a law firm. Her testimony corroborates the testimony of her husband. She further testified that she was four months pregnant at the time of the accident, but she gave birth to a normal, healthy baby in the usual time, and since the date of the accident has given birth to two other children. Her testimony discloses that her knees were cut and bruised as a result of the accident, but apparently no stitches were required. She left the hospital with her husband, and returned home. She was away from her work for four days following the accident, but her employer paid her during that time.

Dr. Leslie A. Schier testified that he is a physician and surgeon, resides in Evanston, Illinois, and specializes in diseases of the ear, nose and throat. He stated he first saw claimant professionally in 1959, and an examination at that time revealed a fractured nasal septum (membranous wall dividing two cavities), which was a few years old; that the septum was deviated by the fracture, and obstructed the nose; and, that he recommended surgery for this condition at a cost of $335.00.

Dr. Schier stated he only saw Mr. Kay on two occasions. The second time was on April 9, 1963, fifteen days before the hearing. On this last occasion he noted a possible sinus infection on the left side of Mr. Kay’s nose, which was probably caused by the deviated septum, Dr. Schier suggested surgery of the deviated septum, conservative treatment of the sinus, and, if this failed to clear up the sinus infection, then surgery of the sinus at an additional cost of $550.00.

Sergeant Lucente testified that he was 32 years old at the time of the hearing. He had joined the National Guard in 1947, and, on July 5, 1955, was driving the third truck in a convoy west on Grand Avenue in the inner lane. The headlights of the truck were on when he left the Armory at 2653 West Madison Street, Chicago, Illinois. He was traveling about 25 to 30 miles per hour at a distance of approximately 120 feet behind the truck immediately in front of him. He further testified that the first National Guard vehicle went through the intersection on the green light, the second one went through on the caution light, and he was going through during the process of the light changing from caution to red. He was “blowing the horn” on the truck, as he approached the intersection.

Sergeant Lucente further testified that, as he approached the intersection, an Oldsmobile was coming from the south, and entered into the intersection. He applied his brakes, turned his steering wheel to the left, but was unable to avoid a collision with the Oldsmobile, which was more than half-way through the intersection.

The facts in the instant case show that claimant was in his proper lane of traffic, and was exercising due care as an ordinarily prudent person would have done under similar circumstances.

Taking all of the facts and circumstances into consideration, the necessary conclusion in this case is that claimants did not contribute to the accident in any way, but that Sergeant Lucente, driver of the National Guard truck did not at the time of the accident have proper management and control of his vehicle, and, by not having proper management and control of his vehicle, caused the damage to claimant’s car, as well as the personal injuries to claimants, Janet Kay and Robert S. Kay. (Hutchinson vs. State of Illinois, 24 C.C.R. 99.)

We are of the opinion that claimant, Janet Kay, should recover as damages, including pain and suffering, the sum of $500.00; and claimant, Robert S. Kay, should recover as his damages, including pain and suffering, and for any permanent damages, as well as for property damages, the sum of $3,750.00, making a total award of $4,250.00.

Claimants have recovered from William Rawle on a covenant not to sue the sum of $1,000.00, which should be deducted from the above amount, leaving a balance of $3,250.00.

It is, therefore, the order of this Court that the sum of $3,250.00 be awarded to claimants, Robert S. Kay and Janet Kay.


author: Wham, J. Per Curiam:

text:
    (No. 4813
    Thomas Barry, Ernest McClintock, Clyde McMillan, Peter Albert, Frank Scarcelli, William Scarcelli, George Keagle, James Cosgrove and Leonard Link, Claimants, vs. State of Illinois, Respondent.

      Opinion re liability filed November 16, 1960.

      Opinion re damages filed May 11, 1965.

    August B. Black, Attorney for Claimants.
    William G. Clark, Attorney General; Bernard Genis and Samuel J. Doy, Assistant Attorneys General, for Respondent.
   Wham, J.

Claimants in this case each contend they suffered damages to their property by the flooding caused by the escape of water from the Illinois and Michigan Canal on July 13, 1957 in Troy Township, Will County, Illinois. The complaint charges that respondent negligently failed to maintain the canal bank in a good state of repair so that a break occurred proximately causing the flooding of the lands and damages to claimants’ crops and property.

The evidence disclosed that approximately 6.73 inches of rain fell in less than fifteen hours on July 13, 1957, and that a break occurred in the south bank of said canal flooding the land owned and occupied by claimants adjacent to the canal and the surrounding vicinity. The break was approximately fifty feet in width and twelve feet in depth.

The break in the canal was not repaired for some eight or nine days due to the fact that the surrounding area was in such a condition that heavy equipment could not be brought to the site of the break, and it was necessary to repair the roads proceeding to the site, which required two or three days. The flow of water through the break was stopped on the first day of work on the wall.

Claimants contend that this was the second occasion in recent years when the particular portion of the bank gave way, and that respondent, in repairing the first break, used improper materials and methods, which resulted in the bank giving way again on the July 13, 1957 occasion after the heavy rainfall. Claimant, Clyde McMillan, testified that he was certain the break in 1954 occurred on his farm at the same place as it did in 1957, and that the 1954 break was about the same as the 1957 break. Floyd McMillan, son of Clyde McMillan, also testified that the 1954 break at the McMillan farm was at the same place as in 1957. He also testified he observed this break at between 10 and 11 o’clock in the morning of July 13, 1957.

James Cosgrove, claimant, testified that he saw the break at the McMillan farm in 1954. Claimant, Ernest Mc-Clintock, also saw the break at the McMillan farm in 1954. William Scarcelli, son of the claimant, Frank Scarcelli, testified he saw the break at the McMillan farm in 1954, and observed the manner in which it was repaired. He also saw the repair operations on the 1957 break, and stated in 1954 they did not tamp down the filling, but in 1957 they ran a bulldozer back and forth tamping it down, and also made the bank wider at the bottom than it had been before the 1957 break.

Another claimant, Leonard Link, testified that there was a break on the McMillan farm in 1954, and he had observed at the time the repairs being made by respondent’s employees. Mr. Link’s occupation is that of a trucking and building contractor, which occupation he has followed for approximately 30 to 35 years. He stated that the repairs to the break in 1954 were not done properly. He stated that they put trees in the break, and that, as the trees deteriorated, the level of the bank at that point gradually sunk down three feet, and the fill soil was not properly compacted. He stated that the 1957 break was repaired with better material, and the soil was properly compacted.

It appears from the testimony that the State had kept no record of the previous breaks. The only testimony offered to oppose that of claimants on this point was that of Roy F. Annis, maintenance man for the Division of Waterways. He testified that he had been a maintenance man on the canal since 1952, and that in 1954 there was a break adjacent to the Scarcelli farm, which was not the same site as the break at the McMillan farm. He testified they used stone, clay, and dirt to repair the break in 1954, and that this was the only previous break in the canal wall. He stated it occurred approximately a mile to a mile and a half from the McMillan farm. On cross-examination, however, he stated that he did not know whether there was or was not a break at the McMillan farm in 1954.

From the testimony and the record on this point, we find that claimants have borne the burden of proving that the 1957 break occurred at the same place as did that in 1954. We also find from the evidence that the repairs of 1954 were not properly made, and consequently we hold that the State was negligent in the maintenance of the canal bank.

Although there is evidence to the effect that the canal overflowed its banks at a number of locations, as was testified to by Leroy Latz, General Superintendent of the canal, there is nothing in the record to show how much of the flooding of claimants’ respective farms was caused by the overflow rather than the break in the canal bank.

From the evidence in this record, we find that the negligence of the State in the maintenance of the canal bank proximately contributed to the cause of the extensive flooding of claimants’ property, and the State should respond in damages.

The State raised an “Act of God” defense based on the contention that the rainfall was so extensive that the State could not reasonably be held to guard against it. This defense is not well taken. As stated in 28 Illinois Law and Practice page 106, the law on this question is, “One may not be held liable for injuries to another where an ‘Act of God,’ or, as it is sometimes referred to, an act of nature, is the proximate cause of the injuries, and one is not guilty of any negligence proximately contributing to such injuries, but in order that this rule may apply it should appear that the ‘Act of God’ or of nature is the sole proximate cause of the injuries.” This rule is applied and stated in Miller vs. Mobile & Ohio Railroad Company, 265 Ill. App. 414 at 418, wherein the court stated with regard to a question of this defense, “Before he can invoke the rule, he must be free from negligence, which was a proximate cause of the damage.”

Moreover, the evidence established that the rainfall of July 13 was not unprecedented, and, in fact, had been exceeded on one occasion as demonstrated by exhibit A, a certified copy of a weather report of the State Climatologist, United States Department of Commerce, Weather Bureau, which indicated that on June 11, 1926 at the same vicinity there was a rainfall of 6.86 inches.

Then, too, the doctrine is well established that, although a rainfall may be more than ordinary, there is a duty to provide against the consequences of such rainfall. In Drda vs. Illinois Terminal Railroad Company, 210 Ill. App. 640 at 648, the court stated: “The doctrine is well established that, although a rainfall may be more than ordinary, that is extraordinary, yet if it be such as has occasionally occurred, even though at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of those changing or obstructing the flow of water to provide against the consequence of such a rainfall. . . . Even though the rainfall of August, 1916 had been unprecedented, yet if the act of the appellant in constructing its bridges and embankments contributed together with such unprecedented flow of water to the flooding of appellee’s lands, appellant would be hable at law for injury caused thereby.”

In 94 C.J.S., Sec. 365 at page 432, it is stated: “The owner of an irrigation ditch or canal, being bound to exercise reasonable care and prudence in the construction and management thereof, is ordinarily hable in damages for injuries resulting from the breaking, leakage, or overflow of such canal or ditch when caused by the want of the required care.” And at page 436 it is stated: “A flood must have been so extraordinary and unprecedented manifestation of nature as could not have been reasonably anticipated or foreseen to come within the term ‘Act of God’.”

Claimants also contend that the locks at Channahon, Illinois were defective, and that the gate tender was unable to open the locks, and that, because of such defective condition, respondent was unable to lower the level of the canal, and thus relieve the flooded condition of claimants’ land. These gates, when opened, direct the flow of canal water into the DuPage River, and it is undisputed that gate No. 3 could not be opened, and gate No. 2 could only be partially opened. These locks were located some five or six miles downstream from the break. It appears from the records of the Department of Public Works and Buildings that an inspection of the locks had been made on June 7, 1957, which revealed that the gates needed replacing and other repair work was necessary. It also appears from the testimony that the repairs were not made until August 19, 1957.

The testimony of respondent established that the gates at Channahon, Illinois controlled the water for only about four miles upstream. It is respondent’s position, that it would make no difference whether the gates were open or closed after a certain point upstream was reached.

Mr. Ralph O. Fisher, Assistant Principal Engineer of the Division of Waterways, testified to these facts as an expert. No testimony was offered by claimants to the contrary. We, therefore, hold on this issue that claimants have not borne the burden of proof with respect to the defective locks proximately causing any damage.

The evidence establishes to our satisfaction that the lands of all claimants were extensively flooded, and that they are entitled to recover damages, inasmuch as respondent’s negligence in maintaining the canal bank proximately contributed to cause the flooding condition.

August B. Black, Attorney for Claimants.

William G. Clark, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.

On the question of damages, however, the record is for the most part unsatisfactory, and this Court will not speculate in attempting to arrive at the amount of damages.

In view of the fact that no objection was made at the time of the hearing regarding the proof of damages, we are re-submitting this case to the Commissioner for further proof on the question of damages, and will withhold passing on any of the claims until the proof on the damage question is completed.

It is, therefore, ordered that the record in this case be re-submitted to the Commissioner, and that claimants and respondent offer further evidence on the question of damages.

Per Curiam:

The facts in this claim have been set forth previously in the opinion rendered by Judge Wham, which was filed in this Court on November 16, 1960. In the opinion the Court stated: “From the evidence in this record, we find that the negligence of the State in the maintenance of the canal bank proximately contributed to the cause of the extensive flooding of claimants’ property, and the State should respond in damages.” Pursuant to the order entered in that opinion, a further hearing was held on February 16, 1961 as to the damages sustained by claimants. From this evidence the Court finds as follows:

1. Claimant, Clyde McMillan, lost 20 acres of corn with a probable yield of 80 bushels per acre and at a selling price of $1.04 per bushel, less a reduction of $7.00 per acre for cost of harvesting.

2. Claimant, James Cosgrove, lost 18 acres of com with a probable yield of 60 bushels per acre and at a selling price of $1.04 per bushel, less a reduction of $7.00 per acre for cost of harvesting and $100.00 for salvage.

3. Claimant, William Scarcelli, lost 15 acres of corn with a probable yield of 75 bushels per acre and at a selling price of $1.04 per bushel, less a reduction of $7.00 per acre for cost of harvesting. In addition, claimant also lost 25 acres of soy beans with a probable yield of 30 bushels per acre and at a selling price of $2.15 per bushel, less a reduction of $7.00 per acre for cost of harvesting.

4. Claimant, George Keagle, lost 5 acres of com with a probable yield of 80 bushels per acre and at a selling price of $1.04 per bushel, less a reduction of $7.00 per acre for cost of harvesting.

5. Claimant, Leonard Link, suffered damages to his basement, sump pump, motor, and furnace as the result of the flooding. There were also damages to canned food in the basement, as well as miscellaneous damages to the exterior and interior of claimant’s property.

6. Claimant, Thomas Barry, lost 35 acres of soy beans with a probable yield of 30 bushels per acre and at a selling price of $2.15 per bushel, less a reduction of $7.00 per acre for cost of harvesting.

7. Claimant, Peter Albert, suffered property damage loss as a result of the flooding to the extent that a driveway was washed away, the replacement cost for which totalled $96.00. In addition, claimant’s well was flooded and condemned, which necessitated the drilling of a new well, and the purchase of a new pump.

8. Claimant, Frank Scarcelli, had 18 acres in asparagus, 12 acres of which were totally destroyed. A probable gross income of $260.00 per acre, less a reduction of $80.00 per acre for the cost of harvesting and marketing, would make a loss of $180.00 per acre.

9. Claimant, Ernest McClintock, lost 5 acres of com with a probable yield of 80 bushels per acre and at a selling price of $1.04 per bushel, less a reduction of $7.00 per acre for cost of harvesting. In addition, claimant also lost 30 tons of clover hay at a selling price of $20.00 per ton, less a reduction of $5.00 per ton for the cost of baling and storing. A claim for the loss of a seed crop was also made. We estimate this loss at 30 bushels of clover seed with a probable selling price of $24.00 per bushel, less the cost of mowing, combining and cleaning in the amount of $6.00 per bushel.

In addition to the foregoing, claimant, Robert Mc-Clintock, also alleged damages for the loss of top soil. It is the opinion of this Court, however, that the evidence in this matter is not such that would warrant an award for this alleged loss.

Awards are, therefore, made to claimants in the following amounts:

Clyde McMillan.................$1,524.00
James Cosgrove................. 897.00
William Scarcelli................ 2,502.50
George Keagle.................. 381.00
Leonard Link................... 800.00
Thomas Barry...................2,012.50
Peter Albert..................... 497.14
Frank Scarcelli..................2,160.00
Ernest McClintock............... 1,371.00


text:
    (No. 4892
    Lissie Rains, Administrator of the Estate of Marilyn Rains, Deceased; Robert Waggoner, A Minor, by Lyndel K. Wag-goner, His Father and Next Friend; Guy Matson, A Minor, by Astrid Matson, his Mother and Next Friend; Mary Ellen Gore, A Minor, by Lincoln Gore, her Father and Next Friend; and, Lyndel K. Waggoner, Claimants, vs. State of Illinois, Respondent.

      Opinion -filed May 11, 1965.
    Leonard J. Dunn and James A. Dooley, Attorneys for Claimants.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

On November 20, 1959, claimants filed their verified complaint in this Court. It consists of five counts, being a separate count for each individual claimant.

There appears to be no serious dispute of facts concerning the accident in question. The facts appearing from the evidence offered herein are as follows: On June 13, 1959, at about 12:30 A.M., claimant, Robert Waggoner, was driving a 1953 Dodge, 4-door automobile, which was owned by his father, (claimant, Lyndel K. Waggoner) in a southerly direction on Illinois State Route No. 45 in an area known as LaGrange Road. At 71st Street and LaGrange Road, claimant, Robert Waggoner, stopped at a stop light estimated to be about seven blocks north of a bridge known as Canal Bridge, over which said Route No. 45 passes in Willow Springs, Cook County, Illinois. Illinois State Route No. 45 was at the time of the collision a four lane highway, with two lanes for southbound traffic and two lanes for northbound traffic. However, at the time of the collision in question, there was a repair zone extending about one-half mile in length involving the two inner traffic lanes approaching the said Canal Bridge. On the night in question, the two middle lanes of the bridge were in the repair zone, and were sealed off at both the north and south ends by barricades, thus permitting the two outer lanes to be open for traffic, creating one lane traffic in a north and south direction as to the outside lanes.

After stopping at the traffic signal aforesaid, claimant, Robert Waggoner, proceeded south in the inside lane of traffic, and continued in this lane to the place of the accident. Claimant, Robert Waggoner, testified that an automobile moved up along his right side, and drove along his right side to the place of the accident; that he was unable to turn into the outer or right-hand lane as the other automobile was too close to him at all times; and, that he did not have room to move into the outer lane.

As claimant approached the repair zone in question from the traffic signal at 71st Street and LaGrange Road, there were signs placed along the side of the highway as follows, and in the following order: A sign 36 inches square bearing the legend “Road Repairs Ahead, Please Drive Carefully;” a sign 3 feet by 3 feet bearing the legend “One Bridge Lane;” a sign 24 inches high and 18 inches wide bearing the legend “Keep to the Right;” a sign 3 feet by 3 feet bearing the legend “One-Way Traffic;” and a sign 42 inches wide and 20 inches high bearing the legend “Barricade Ahead.” These signs commenced approximately 1,000 feet from the bridge construction area, and were located approximately 200 feet apart going toward the bridge in a southerly direction. They were erected about 18 to 24 inches from the edge of the pavement.

To channel the traffic into the single lane across the bridge, which would be the outer lane, rubber cones were used as markers. These were held down by concrete blocks to prevent them from being displaced. The blocks, which were ordinary concrete building blocks, were used in their natural color, which color was approximately the same color as that of the highway. There was no illumination on the blocks or the cones, and no overhead fights illuminating the area. It was stipulated that the State of Illinois was in full supervision and control of the construction. David Guard, a construction foreman for the Division of Highways, State of Illinois, testified that he supervised the installation and traffic protection system set up around where construction work was in progress on State Highways, and that rubber cones were used as markers to channel traffic into the single bridge lane, because they were soft, and would not damage the cone or the car, if hit.

As claimant, Robert Waggoner, approached the bridge in question, he was driving his vehicle at a speed between 40 and 50 m.p.h. Riding in the front seat with him was claimant, Mary Ellen Gore, and riding in the back seat was claimant, Guy Matson, and the decedent, Marilyn Rains. At a point approximately 200 feet from the barricade, which was placed north of the bridge in question, and which sealed off the inner lane, claimant, Robert Waggoner, still driving in the inner traffic lane, struck a concrete block with the left front wheel of his vehicle. The impact blew out the left front tire, and caused the automobile to go out of control and strike the bridge railing. As the automobile struck the bridge railing, the doors came open, and claimant Gore and said Marilyn Rains were thrown onto the pavement. Claimant Matson had his foot hooked under the back seat, and his body hung out of the door, as the vehicle proceeded onward. Claimant, Robert Waggoner, remained in the automobile until it came to a halt.

As a result of the accident, the evidence reveals injuries and damages as follows:

Marilyn Rains was critically injured, and died on June 20, 1959, eight days after the accident. Respondent stipulated that the accident was the cause of her death. Marilyn Rains left surviving her father and her mother, the latter, Lissie Rains, being appointed as Administrator of her estate. The evidence reveals that Marilyn Rains was 17 years of age, a bright, alert girl who had been an excellent student, and was already registered in college for the following Fall term. She had worked for periods of six months in drive-in theaters and restaurants. She had performed services around her home for both parents, and was to have commenced work at a mail order house the Monday after the accident in question. With monies she earned, she contributed to the support of the family. Her father worked as a barber, and her mother worked in a dress factory. Lissie Rains, as the representative of the estate, claims damages in the sum of $25,000.00.

Mary Ellen Gore, aged 17 at the time of the accident, suffered a brain concussion, and the evidence reveals, through the testimony of her physician who had known her since she was six years old, that she also suffered a traumatic neurosis, which condition the physician described to be permanent. Claimant Gore testified that she is afraid to drive at night, cries a great deal, has difficulty remembering things, and is more irritable than before the accident. Her doctor bill, as a result of the accident, was $50.00. She claims damages through her father, as next friend, in the sum of $25,000.00.

Guy Matson was treated at the hospital after the accident, and then released. No physician testified as to his injuries. Claimant Matson testified that a doctor told him that a nerve in his back had probably been injured, but that eventually it would go away. He further testified to pain for two or three days after the accident, and stated that his back bothered him when lifting. He further testified that his hair had been falling out since the accident. His medical bills, including X-Rays and drugs, totaled $47.69. He claims damages through his mother, as next friend, in the sum of $25,000.00.

Lyndel K. Waggoner, father of Robert Waggoner, was the owner of the automobile involved in the accident. The evidence shows that a bailment relationship existed between the owner and driver of the automobile at the time of the accident. Lyndel K. Waggoner testified that his car was a total loss, and that the fair cash market value of the car was approximately $300.00. Claimant, Lyndel K. Waggoner, also makes claim for an ambulance bill for $28.00, and doctor and X-Ray bills in a total amount of $65.00 for his son, Robert Waggoner.

Robert Waggoner received a mild compression fracture of the fifth vertebra. There was evidence that the condition caused pain and limitation of movement of the spine, and also the amount and type of work that claimant could do. He was treated at a hospital after the accident, and then released. His total medicals, including X-Rays, amounted to $55.00. He claims damages through his father, as next friend, in the sum of $25,000.00.

It was stipulated between the parties that none of the claimants in this cause received any money or compensation from other sources, nor is there any claim pending before any other Court on behalf of any of the claimants.

Claimants contend that respondent was guilty of negligence, which proximately caused the injuries and damages, and that they were not guilty of contributory negligence.

Respondent contends that it was not negligent, that it discharged its duties toward claimants by erecting five large, illuminated, reflectorized signs warning of the particular danger, and that claimant’s failure to see the signs was the sole and proximate cause of the accident.

The Court finds that the primary issues are as follows:

Was respondent guilty of negligence in maintaining the repair zone in question?

Was the negligence of respondent, if any, the proximate cause, or a proximate contributing cause of the injuries and damages suffered by claimants?

Were claimants, or any one of them, guilty of contributory negligence at the time and place in question?

Was the negligence of any claimant, or claimants, a proximate contributing cause of the injuries and damages sustained by claimants?

From the evidence in this case, it is clear that the State violated its duty by placing concrete blocks approximately eight inches high and six inches thick upon the highway in question, using said blocks in their natural color and without any illumination. A State employee testified that the blocks were used to hold down the rubber cones, which in turn were used to channel the traffic into a single lane. The cones were used because they were soft, and would not damage an automobile when struck. The State apparently knew that the concrete blocks were likely to be struck by motorists, as a State employee testified that it was necessary to replace at least fifty or sixty concrete blocks, which were broken up by traffic during the three month period of construction. The State, at the time of the accident, had no one assigned to make periodic checks to see if the concrete blocks were in place, and had apparently left the repair zone unattended until the Monday following the accident in question. A State witness, Mr. Guard, admitted that some peril existed in placing concrete blocks upon the highway, but attempted to excuse this act by saying that it was the best thing available to hold down the rubber cones. This does not in any way discharge the duty owed by the State to motorists on the highway. The automobile in question struck one of the concrete blocks, which was placed upon the highway by respondent, before it went out of control. The proof indicates negligence on the part of respondent, which was the proximate contributing cause of the accident in question.

The evidence further shows that claimant, Robert Wag-goner, was guilty of contributory negligence proximately contributing to the cause of the injuries and damages in question, and he is barred from recovery against the State. (Bloom vs. State of Illinois, 22 C.C.R. 582.)

Claimant, Robert Waggoner, drove approximately 1,000 feet, and passed five warning signs without seeing them. Yet, he testified that he was watching the road during this period. It would appear from the evidence that these signs were within his range of vision. The law charges a person with the duty of seeing that which is clearly visible and within his range of vision. (Dickinson vs. Rockford Van Or-man Hotel Co., 326 Ill. 686.) Robert Waggoner obviously failed to keep a proper lookout for traffic signs placed along the highway. This negligence on his part contributed to cause the accident in question.

The evidence shows that the claimant passengers and the claimant owner of the damaged automobile were free from contributory negligence. There can be no contributory negligence in the contemplation of the law where there is an exercise of ordinary and reasonable care. (Lasko vs. Meier, 394 Ill. 71.) It is not seriously contended in this cause by respondent that there is any lack of due care on the part of claimants other than Robert Waggoner, nor is there any evidence of their lack of due care in the record.

The driver, Robert Waggoner, had complete control over the operation of the vehicle in question, and his negligence cannot, of course, be imputed to the guest passengers. (Lasko vs. Meier, 394 Ill. 71.) Permissive use by a son of his father’s car creates a bailor-bailee relationship between Lyndel K. Waggoner and his son, Robert. The negligence of Robert is not imputable to his father. (Gilman vs. Lee, 23 Ill. App. 2d 61.) Lyndel K. Waggoner may, therefore, recover for damages to his automobile. As to damages expended for medicals claimed to be expended for his son, Robert Waggoner, it appears that in Count II, Par. 10 of the complaint filed herein, that Lyndel K. Waggoner has set over and transferred any right to recover for said medicals to his son, Robert Waggoner, and this claim is considered under Robert Waggoner’s claim for injuries.

From a consideration of all the facts in the case, we find:

1. That respondent was guilty of negligence, which was a proximate contributing cause of the injuries and damages in question.

2. That the claimant driver, Robert Waggoner, was guilty of contributory negligence, which proximately contributed to the cause of the accident in question.

3. That the other claimants in this cause were free of any contributory negligence, which was a proximate cause of the injuries and damages in question.

The duty of the State to motorists using public highways under its control is to exercise ordinary care to keep them reasonably safe for such use, or to warn of unsafe conditions existing. (Rickelman vs. State of Illinois, 19 C.C.R. 54.)

The evidence of damages is not disputed, and we find that damages have been proven by all claimants.

The claim of Robert Waggoner, by Lyndel K. Wag-goner, his father and next friend, is, however, denied because of his failure to prove that he was in the exercise of due care for his own safety at the time of the accident.

The claim of Lyndel K. Waggoner for damages to his car is allowed, and an award, therefore, is made to claimant, Lyndel K. Waggoner, in the sum of $300.00.

We find that Guy Matson, formerly a minor, but now of age, suffered damages in the amount of $547.69, and an award, therefore, is made to claimant, Guy Matson, in the sum of $547.69.

We find that Mary Ellen Gore Skvier, formerly a minor, but now of age and married, suffered damages in the amount of $750.00, and an award, therefore, is made to Mary Ellen Gore Skvier, in the sum of $750.00.

Lastly, we find that the claim of Lissie Rains, as Administrator of the Estate of Marilyn Rains, deceased, be allowed to the extent of $14,000.00, and an award, therefore, is made to claimant, Lissie Rains, as Administrator of the Estate of Marilyn Rains, deceased, in the amount of $14,000.00.