text:
    (No. 4878
    Cam-Record Co., Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1963.

    Raymond E. Trafelet and Geobge E. Dolezal, and Rathje, Kulp, Sabel and Sullivan, Attorneys for Claimant.
    William G. Clark, Attorney General; Robert A. Speecher, Special Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Cam-Record Co., Inc., seeks recovery of $25,056.87, allegedly due Cam-Record Co., Inc., from the State of Illinois for material furnished and delivered pursuant to contract.

Clarence J. Reuter, President of claimant company, testified as follows:

He had been in the continuous forms business since 1940 or 1941. In the latter part of 1953 he was consulted by Orville Hodge, the Auditor of Public Accounts of the State of Illinois, in regard to microfilming warrants of the State stored in the Auditor’s office. Reuter told Hodge that he had had experience in general office services but not in microfilming. Reuter studied the situation, and claims to have tried to get the microfilming work done on a brokerage basis. After discussion with Hodge, however, Reuter decided to go into the microfilming business himself.

Reuter agreed to microfilm the State warrants under the name Cam-Record Co., not a corporation at that time, and he negotiated a contract with the Auditor’s office, dated January 18, 1954, which provided for a price of $2.75 per thousand acceptable warrant images. This contract was to expire on December 31, 1955. The price was set by Reuter and Hodge, but most, if not all, of the other provisions of the contract were negotiated between Reuter and Edward Epping, Hodge’s Administrative Assistant.

The terms of the contract identified Cam-Record Co. as the Seller, and the Auditor of Public Accounts of the State of Illinois as the Buyer. It provided that the contract was not transferable or assignable by either party, and the document was declared to constitute the full understanding between the parties.

Mr. Hodge instructed Reuter that all of the details should be handled with Epping. Epping suggested that a lawyer-friend of his in St. Louis help set up Cam-Record Co. as a corporation, and that Mersinger and Co., of which Epping identified himself as senior partner, keep the books for $250.00 per month. On February 18, 1954, Cam-Record Co. was formed as a Missouri Corporation with an initial capital of $2,000.00 furnished by Reuter, and $500.00 furnished by Epping. Epping then procured the recording of the company’s charter in Missouri. A certificate of authority to commence business was issued by the Secretary of State of Missouri on March 10, 1954, and Cam-Record Co., Inc., was licensed to do business as a foreign corporation in Hlinois by the Secretary of State of Illinois on May 4, 1954.

After its incorporation, Cam-Record Co. proceeded with the microfilming of warrants for the State. The invoices, upon which the claim herein is based, were rendered, and the services allegedly performed on dates ranging from March 21, 1955 to June 27, 1956.

Reuter was, from the beginning, President of the Cam-Record Co. When Cam-Record Co., Inc., commenced doing business as a corporation, it issued 20 shares of stock, of which 10 were distributed to Reuter, 5 to Henry H. Rickey, Secretary and a Director of Cam-Record Co., and 5 to an employee of Mersinger and Co. named Allen, who was described by Reuter as holding the shares as a “dummy”. The stock certificates were held in Epping’s office “for safekeeping”, including Reuter’s certificate for 10 shares. Some months later Epping requested that the certificates be signed over to him in blank. All of the stock certificates were eventually endorsed in blank to Epping. The total gross business done by Cam-Record Co. during the time of its existence was $220,000.00, of which about $200,000.00 was for the Auditor of Public Accounts. Mr. Epping kept the ledger of Cam-Record Co. in his office, in addition to the accounts receivable and payable. Epping did all of the bookkeeping, and prepared the Cam-Record Co. checks, although he did not sign them. Epping did not have the authority to sign the checks, which were sent over to the Cam-Record Co. office for signature.

No payments were made directly to Edward Epping, other than the fact he was a partner in the Mersinger Company, which received the $250.00 per month. This amount was described by Reuter as being for 1 ‘ so-called services ’ ’, but the only service rendered was the making of ledger entries. Total payments to Mersinger and Co. by Cam-Record Co. amounted to about $7,500.00.

Reuter did not know the purpose or use intended for many of the checks sent to the Cam-Record Co. office by Epping for signature. Sometimes Mr. Rickey would sign them, and Reuter would not even know they had been signed. In some cases, these checks were payable to cash. Checks handled in this manner amounted to approximately $3,500.00. In regard to these checks, Reuter stated: “They were for nothing. It was pure— pure, what do you want to call it? Another extension of the intimidation and robbery ...”

Cam-Record Co. also made monthly payments of $150.00 to Adam Sales and Service Company, of which Lloyd E. Lane was owner or president. Lloyd E. Lane was also employed in the Auditor’s office. Reuter stated as follows with regard to these payments: “We paid to Adam Sales and Service Company. They did the hauling, and we were not supposed to pay them. Our contract covered the documents being brought to us in good condition, delivered to us, and we were forced to pay the transportation despite the existence of the contract at the time, and the verbal agreement, in addition, that we would not have to pay the hauling, but we did pay the hauling.”

Attorney Robert A. Sprecher testified on behalf of respondent to the effect that an audit revealed that respondent’s exhibit No. 9, a Cam-Record Co. check, dated May 24, 1955, in the amount of $1,750.00 payable to Henry H. Rickey, signed by Rickey, endorsed by him in blank, and cashed on May 27, 1955 at the Southmoor Bank, appeared in the “brown envelope account”, a private account, which Orville Hodge kept at the Southmoor Bank. He further testified that, on May 26,1954, a check, a State warrant payable to Reuter Business Systems, Multi-Copy Office Forms, in the amount of $549.95 was deposited by Hodge in said “brown envelope account”, and a total of nine checks of $150.00 each, issued by Cam-Record Co. and payable to Adam Sales and Service, were deposited in Hodge’s account between May 26, 1954 and May 27, 1955.

The record shows that the license of Cam-Record Co. to do business as a corporation in Illinois was revoked on November 15, 1957. The complaint in the instant case was filed by Cam-Record Co., A Corporation, as claimant on August 4, 1959. The Missouri Charter of Cam-Record Co. was revoked on January 1, 1959.

Respondent has sought to justify its refusal of payment to claimant on several grounds. Although a number of its contentions appear meritorious, and might well be appropriate basis for this Court’s decision, we deem it unnecessary to discuss at length the several defenses advanced by respondent. We consider of primary importance the argument that Edward Epping’s dual role as an owner of claimant company and agent for the State of Illinois nullifies the contract, and renders it unenforceable.

Ill. Rev. Stats., Chap. 127, Par. 75 (1953, 1955), provided:

“No contract shall be let to any person holding any State office in this State or a seat in the General Assembly, or to any person employed in any of the offices of the State government, or the wife of a State officer, member of the General Assembly, or employee as aforesaid, nor shall any State officer, member of the General Assembly, or wife of employee as aforesaid, become, directly or indirectly, interested in any such contract, under penalty of forfeiting such contract, and being fined not exceeding one thousand dollars. 1915, June 22, Laws 1915, p. 671, Sec. 12.” (Emphasis supplied.)

Claimant argues that Epping is not within a class forbidden by law to be interested in a State contract, and that, while Epping was Hodge’s Administrative Assistant, this was not a position created by law, therefore, Epping was not an “officer.” Claimant further argues that Epping was not an employee of the State, because he was not carried on a payroll, but instead the State paid Mersinger and Company $1,000.00 per month, which in turn was paid to Epping.

Respondent has submitted an official report entitled “State of Illinois, Report and Recommendations to Illinois Budgetary Commission with Respect to Investigation on Behalf of the Commission as to the Operations of the Office of Public Accounts of Illinois under Orville E. Hodge ’ ’, which includes the following statement on pages 26 and 27:

“Hodge and some of his employees and consultants were repeatedly and consciously guilty of serving their personal interests in conflict with and betrayal of their fiduciary responsibilities, and at the expense of the public interest.
“Edward A. Epping ostensibly served Hodge as a professional accountant consultant. However, he actually served as the Auditor's executive assistant, with authority, direction and control over the Auditor’s employees, despite the fact he was neither carried on the payroll as an employee, nor did he otherwise have a recorded official status. As we have reported elsewhere, he was a partner in the accounting firm of F. M. Mersinger and Company of East St. Louis that was retained by Hodge to do auditing work.
“Payments of $1,000.00 a month were made to F. M. Mersinger and Company for Epping’s services. . .
“Epping was also personally interested in Cam-Record Co., Inc., which entered into an exclusive contract with the Auditor’s office to microfilm all State records retained by that office. Cam-Record paid $250.00 per month to F. M. Mersinger and Co. for accounting work allegedly performed by Epping. At one time Epping had in his possession all of the stock of the company endorsed in blank.”

Claimant’s own witness, Mr. Beuter, testified that Epping approved “almost everything” in the Auditor’s office, and would generally approve new systems or forms.

A case in point is United States vs. Mississippi Valley Generating Co., 364 U.S. 520 (1961), where the government and the Mississippi Valley Generating Company contracted for the construction and operation of a power plant by the Company. Before the plant was constructed the government cancelled the contract, because the power was no longer needed. The Company sued the government for expenses incurred prior to cancellation.

The Supreme Court held the contract unenforceable due to the activities of Adolphe Wenzell, an officer and director of the First Boston Corporation, a financial institution. He acted as part-time consultant to the Bureau of the Budget at $10.00 per day plus transportation expenses. Although Wenzell took no part in the final negotiations, which led to a formal contract, he did give advice of major importance in the preliminary negotiations. First Boston was subsequently chosen by the sponsors of the project to conduct the major part of the financing.

The Company argued that Wenzell was not an officer or agent of the United States, because “he took no oath of office; he had no tenure; he served without salary, except for $10.00 per day in lieu of subsistence; his duties were merely consultative, were occasional and temporary, and were not prescribed by statute; and, he was permitted to continue in his position as one of the vice presidents and directors of First Boston Corporation, and to draw his salary from that company. ’ ’

The Supreme Court held (page 552):

“A key representative of the Government, who has taken no oath of office, who has no tenure, and who receives no salary, is just as likely to subordinate the government’s interest to his own, as is a regular, full-time compensated civil servant.”

The Court further declared that the sponsors themselves were guilty of no wrongdoing, but the public must be protected from the “corruption, which might lie undetectable beneath the surface of a contract conceived in a tainted transaction.” Although the federal conflict of interest statute (18 U.S.C., Sec. 434 ) does not specifically provide for the invalidation of contracts made in violation of it, the Supreme Court held that such contracts are unenforceable, and refused to allow recovery for the loss suffered by the company.

The issue of whether or not Edward Epping as Hodge’s Administrative Assistant was a State employee in violation of paragraph 75 also arose in this Court in the recent case of Fred M. Mersinger vs. State of Illinois, No. 4900. This Court held that Epping was within the class of persons prohibited by statute from being interested in a contract under Chap. 127, Par. 75, as an employee of the State, citing People vs. Epping, 17 Ill. 2d 557, 162 N.E. 2d 366. In People vs. Epping, the Illinois Supreme Court affirmed the conviction of Epping for the crime of embezzlement by a public officer, or ‘ ‘ any clerk, agent, servant or employee of such officer.” At page 370 of that decision, the Court stated that Epping was variously described by witnesses as Hodge’s “administrative assistant, or executive assistant, or the right-hand-man of the Auditor.”

No matter Ms title, Bpping was unquestionably acting as an agent of the State, and receiving $1,000.00 monthly compensation therefrom, indirectly, if not directly.

The conflict of interest statutes prohibiting public officers and employees from having an interest in contracts are declaratory of the common law, and are designed to protect the public from the evils that would result if public officials were interested in public contracts. The authorities indicate that at common law such contracts were voided on the grounds of public policy to protect the government from being defrauded by its own servants.

It is the opinion of tMs Court that the contracts upon which this action is based are unenforceable, because of the conflict of interest of Edward Bpping, who acted as agent of the State in negotiating and administering the terms of the contracts with a company in wMch he had a financial interest, amounting at one time to holding all the shares endorsed to him in blank.

The claim of Cam-Record Co., Inc., is hereby denied.


source: Caselaw Access Project

author: Dove, J.

license: Public Domain

text:
    (No. 4905
    Robert Clyde Shilling, Harry Floyd Shilling, and South Side Trust and Savings Bank of Peoria, Trustees, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1963.

    Sutherland and Sutherland, Attorneys for Claimants.
    William G. Clark, Attorney General; Lawrence W.. Reisch, Jr., Assistant Attorney General, for Respondent..
   Dove, J.

On March 24, 1960, claimants filed their complaint seeking an award in the amount of $4,000.00 for damages sustained by reason of flooding, caused by the constructiqn of S.B.I. Route No. 29.

The complaint alleges that, prior to May of 1958, surface waters flowed southwesterly along the northwesterly line of the Chicago, Rock Island and Pacific Railroad, and drained off into holes in the ground.

The complaint further alleges that the State constructed a four lane highway in 1958, and that by reason thereof the grade water fell upon 1,500 feet of the highway, ran off into a 6 x 6 cattle pass located under the railroad, and was then cast upon 1.63 acres belonging to claimants.

There is a dispute in the record as to whether the 6x6 underpass flooded upon the area prior to the construction of the highway. However, joint exhibits Nos. 1 and 2 indicate that the watershed drained generally to the east and into the Illinois River.

Exhibit No. 2 also discloses that to the west on the four lane highway a fairly large subdivision exists, which would likewise drain under the highway and railroad underpass in an easterly direction.

“While the flow of surface water from the dominant estate upon the servient estate may, in the interests of good husbandry, be increased by ditches and drains, in its natural flow from the surface in one channel, it cannot be diverted into another and different channel so as to increase the flow upon the servient estate.” Village of Crpssville vs. Stuart, 77 Ill. App. 513, 67 C. J., Sec. 873.

There is little doubt but what the run-off from the highway and the subdivision would increase the flow across the servient tenement owned by claimants. The difficulty is apportioning the amount of the flow, as it would appear that the whole area involved consisted of about 250 acres.

The evidence discloses that the only damage was to the north 75 feet of the 1.63 acre tract, and that the value of the tract, if not flooded, would have been between $1,000.00 and $1,500.00. That by reason of the flooding of said tract the value would be not more than $200.00 per acre, and would probably be of no value.

An award is, therefore, made to claimants in the amount of $1,000.00.


author: Perlin, C. J.

text:
    (No. 4927
    Jessie B. Curtis and James F. Curtis, Administrator of the Estate of Lucy L. R. Curtis, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1963.

    Charles Kenney and Olsen and Cantrill, Attorneys for Claimants.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimants, Jesse B. Curtis and James F. Curtis, Administrator of the Estate of Lucy L. R. Curtis, deceased, seek recovery of $12,000.00 and $13,000.00, respectively, for damages arising out of a collision between two automobiles on August 1,1959.

The evidence shows that claimant, Jesse B. Curtis, was driving one of the automobiles in a northerly direction on XJ.S. Highway No. 66. His mother, Lucy L. R. Curtis, was a passenger. The other vehicle, an unmarked 1957 Ford passenger automobile, was being driven in a southerly direction on U.S. Highway No. 66 by Clarence U. Swain, Illinois State Highway Police Trooper, and carried Julius B. Luber, a State Trooper, as a passenger. Both Swain and Luber, at the time of the accident, were acting in the course of their duties as special investigators assigned to the Central Office of the Illinois State Highway Police. Trooper Swain and Lucy L. R. Curtis died as a result of the collision, which occurred near the intersection of U.S. Highway No. 66 and Route No. 124 on Route No. 66.

There appears to be no dispute concerning the facts of the case, since respondent in its statement, brief and argument “generally accepts claimants’ statement of facts. ’ ’

The accident occurred shortly after 1:00 P.M. According to witnesses, the weather was clear and dry, and visibility excellent. The car driven by Trooper Swain was traveling south on Highway No. 66, when he apparently lost control and whirled to the left into the path of traffic in the northbound lanes, colliding with the vehicle driven by claimant, Jesse B. Curtis.

The only question presented to this Court is the amount of damages, if any, to which claimants may be entitled.

Claimant, Jesse B. Curtis, has received $12,500.00 for his individual claim from Trooper Swain’s insurance company, and claimant, James P. Curtis, has received $12,000.00 in behalf of the estate of Lucy L. R. Curtis, with $500.00 of that amount going to a minor son of Lucy L. R. Curtis, who was 19 years old at the time of the accident. In consideration of such settlements claimants gave covenants not to sue. Respondent urges that, because of the reasonable and generous nature of the insurance settlement, no additional money damages be awarded.

Claimant, Jesse B. Cnrtis, incurred actual salary-loss and medical expenses totalling $4,411.02. He was able to continue Ms work as a teacher. None of the medical reports submitted by claimant were current, the latest examination having been made by Dr. H. G. Woody more than a year before the hearing in the case was held. That report specifically stated that the report was

not a permanent disability evaluation, and further stated that, since August 14,1959, “Mr. Curtis has made a fairly uneventful recovery.” No permanent injury, wMch would hamper claimant’s activities, has been effectively demonstrated.

There has in the opinion of this Court been no presentation of evidence to justify an award in excess of the insurance settlement already received by claimants.

The claims of Jesse B. Curtis and James F. Curtis are hereby denied.


text:
    (No. 4953
    Elizabeth Ann Murray, a Minor, by her next friend, Elizabeth Murray, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1963.

    J. D. Quarant, Attorney for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

TMs action is brought in behalf of Elizabeth Ann Murray, a Minor, for $25,000.00 for damages incurred because of personal injuries sustained on July 3, 1960, when she was walking in Cave-in-Rock State Park in Hardin County, Illinois.

Claimant alleges that the pathway upon which she was walking gave way, and plunged her to the floor of a cave, some 35 or 40 feet below the level of the path. This was her first visit to the park, and the accident occurred about 25 minutes after her arrival. Claimant was 14 years old at the time of the accident. She was following her girl friend up the path, which was about 18 inches wide, and was “right behind her.” Claimant, who was not aware of the location of the cave, testified that she was on the path when she fell.

Claimant contends that respondent was negligent in that, “having notice and knowledge of a pre-existing condition”, it neglected to do anything about it. “Also, it built flagstone walks and pathways alongside this opening, a picnic area with tables just 300 feet away, on the same gradient level, accessible to motor vehicles, impliedly inviting the public to this particular area of the park. ’ ’

Floyd Angleton, Custodian of the Cave-in-Rock State Park, described the scene of the accident as follows: A gravel path about 18 or 20 inches wide on a high hill, about 3 feet from the hole into which claimant tumbled. The hole is about 15 feet long and about 8 feet wide. There is brush along the path and above the path, and vegetation all around the hole. There is a place where the path leaves a flagstone walk, and goes to the opening where claimant fell. The path is maintained by the State, and material is put on it to keep it from getting muddy.

When asked whether the hole was visible to a person walking on the path the morning of the accident, Angle-ton replied: “It is visible to me. I don’t know about other people, but it is to me.” Angleton also stated that “in some places the pathway was pretty close to the hole.” There are picnic tables about 300 feet north of the hole, and “everybody picnics there.”

Angleton further testified that the previous custodian, Joe Garland, had poles placed at the opening in question for protection, but that they were torn down. On the date of this accident, there was no fixed fence at the opening, and Angleton knew of no signs in the park warning people of the opening or of dangerous holes there.

Clyde Flynn, Jr., who lives near Cave-in-Rock State Park, and is familiar with the area, testified that there are many caves and openings in the park, but only one has a grill over it. There are no guards or fences around the other openings, nor are there warning signs. He had talked to several State employees, including Custodians Angleton and Garland, about the dangerous conditions. Flynn further stated that “this particular cave, with which you are concerned, is not more than 3 or 4 feet from the path. ’ ’

Clyde Kaylor, a former employee of the State at this park, testified he was familiar with the area in question. He had never noticed any barricades, warning signs, or notices as far as “this particular opening” or any other opening in the park area, although in one place in the main cave there is a rock wall around it, and a heavy wire screen over it. The nearest part of the hole, through which claimant fell, is several feet from the flagstone walk. There is a well-defined path leading from the flagstone walk, used by the public to go around the hole. He often mentioned to Mr. Garland that there ought to be some precaution not only at that hole, but at the whole bluff. He further testified that there are trees growing around this opening, which could tend to obstruct the view of a person approaching the opening* along the pathway.

Claimant has submitted an affidavit of Bernard Kaegi, who was Custodian of Cave-in-Rock State Park on or about May 12, 1960. Kaegi’s affidavit stated that on or about that date a Leo Flynn fell into the same cave opening into which claimant, Elizabeth Ann Murray, fell.

Respondent argues that the State is not an insurer of the safety of users of State property, and was not negligent under the facts of this case, and that the “negligence of Elizabeth Ann Murray in stepping off of a well-defined path was the proximate cause of her injury.”

It is the opinion of this Court that claimant has not been proven to be contributorily negligent. Respondent has presented no evidence, which would tend to show that claimant was acting other than with due care for her safety, or that she in fact left the “well-defined” path. The path in question was near a popular picinc area maintained by respondent. It ran dangerously close to the hole into which claimant tumbled. Although the hole was obscured by trees and other vegetation, there were no warning signs or barricades. A reasonable person, unfamiliar with the area, could not have foreseen such peril.

That respondent had notice of the danger is demonstrated by the previous attempts to erect guard posts, as indicated by the testimony of witnesses, who had reported the hazards of that hole and other danger points in the park to State officials long before this accident occurred, and by its knowledge of at least one prior accident in the same opening.

The State owes a duty to the public to exercise reasonable care in establishing, maintaining and supervising its parks. Kamin vs. State of Illinois, 21 C.C.R. 467, 473; Stedman vs. State of Illinois, 22 C.C.R. 446, 448. Respondent was negligent in failing to maintain adequate signs or barricades warning of the danger, which was known by it to exist long prior to the happening of this occurrence.

The remaining question concerns the extent of damages incurred by claimant as a result of this accident. Claimant’s mother, Elizabeth Murray, testified that, up to the time of the hearing on June 9, 1961, claimant had been unable to attend school because of her injuries. She was a graduate of the eighth grade and an honor student. Claimant could not climb stairs, which allegedly necessitated the family’s moving from their third floor apartment to another on a first floor.

According to Drs. Albert Goldstein and John R. Duffy, who treated claimant, her injuries included head and facial injuries, multiple scalp and other lacerations, concussions and abrasions, a complete fracture to the left pelvic area, leaving the pelvis asymmetrical in shape, a deformity to the sacroiliac junction, damage to the left acetabulum, a tilted pelvis, % inch high on the left side, and one leg % inch shorter, bladder damage with subsequent incontinence, paralitic ileus, injuries to the soft tissue of the abdomen and accompanying menstrual abnormalities. Dr. Goldstein testified that plaintiff will be able to walk, although he could not state whether or not she will be able to run. Dr. Duffy testified that she could be in pain after walking, and Dr. Goldstein indicated that in the future she might experience pain in walking, engaging in activities and sports, and climbing stairs.

The doctors further testified that, as a result of her injuries, claimant will probably have difficulty in the termination of pregnancy. Up to the time of the hearing the amounts for medical care and treatment for claimant totalled approximately $1,525.00.

This Court is of the opinion that claimant has suffered substantial damage, and she is hereby awarded the sum of $15,000.00.


text:
    (No. 4989
    Roy E. Clifton, Administrator of the Estate of Carol S. Clifton, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1963.

    Sorling, Catron and Hardin, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Roy E. Clifton, Administrator of the Estate of Carol S. Clifton, brings this action claiming damages of $25,000.00 arising from the alleged wrongful death of Carol S. Clifton, his son.

The parties have submitted a stipulation, which includes the following facts:

“3. During the month of October, 1960, and prior thereto, respondent, through its Department of Public Welfare, owned and operated a hospital for mentally ill persons in Jacksonville, Illinois, known as the Jacksonville State Hospital.
4. Carol S. Clifton, deceased, in September of 1960, voluntarily entered and was accepted by the Jacksonville State Hospital, and was assigned a bed in a ward thereof, known as Veteran’s Nine.
5. On September 30, 1960, respondent accepted to its Jacksonville State Hospital Marvin Robertson, pursuant to an order of commitment from the County Court of Macon County, Illinois.
6. On October 3, 1960, Marvin Robertson was transferred to and lodged in Veteran's Nine of Jacksonville State Hospital, where he remained until after the death of Carol S. Clifton, on or about 12:15 AM., Monday, October 24, I960."

The Departmental Report of the Department of Mental Health admits the following description of the occurrence, which led to the death of Carol S. Clifton:

“Marvin Robertson, a mentally ill person of a violent and dangerous character, on October 24, 1960, obtained the opportunity to, and did assault and physically strike with the metal roller of a mop bucket Carol S. Clifton, as he slept in his bed in Veteran's Nine, inflicting immediately fatal injuries to the latter.”

Although the Department denies that it had knowledge of the violent and dangerous character of Robertson, claimant alleges that respondent’s negligence was the cause of Carol S. Clifton’s death, in that it failed to make a reasonable effort to ascertain that Marvin Robertson was a mentally ill person of a dangerous and violent character; that, notwithstanding respondent’s knowledge of the dangerous and violent character of Marvin Robertson, it failed to take adequate measures to restrain and control him, so as to prevent injury to other patients of the Jacksonville State Hospital; that respondent failed to adequately supervise the ward, known as Veteran’s Nine of the Hospital, where it bedded mentally ill persons, and where an assault and physical attack on one patient by another was a constant possibility and reasonably foreseeable; that respondent failed to take reasonable precautions to prevent mentally ill patients bedded in said Veteran’s Nine ward from obtaining instruments capable of inflicting serious and fatal injuries.

Respondent contends that it was guilty of no negligence, and that each inmate was supervised and placed where he had a right to be; that “the State is not an insurer of the safety of the inmates”, and that “to hold otherwise would require respondent to anticipate in every instance the actions planned in the distorted minds of the inmates of its mental institutions. ’ ’

The first question to be determined by this Court is whether respondent was negligent in its duty to operate the Jacksonville State Hospital in a reasonably safe manner, so as to prevent injury to its patients.

The record reveals the following facts:

A Decatur Police Officer, Boy D. Shumard, testified that, on September 23, 1960, he found Marvin Bobertson loitering in the Police Station. Bobertson appeared to be concealing something in his pocket. When Shumard tried to investigate, Bobertson attacked him with a kitchen knife, and attempted to stab him. Boberston also seized the revolver of a Police Sergeant, and thrust it into another policeman’s abdomen.

Four days later, on September 27, 1960, a Petition for Commitment was filed by D. C. Bobertson, father of Marvin Bobertson, in the County Court of Macon County, requesting that the Court adjudge Marvin Bobertson to be a mentally ill person, or a person in need of mental treatment, and commit Mm for care and treatment to a suitable public or private hospital.

Also filed in the County Court at the same time was a Physician’s Certificate by Dr. V. T. Turley, which contains the following report:

“That I personally made examination of Marvin Robertson residing at Decatur, Illinois on this 26th day of September, 1960, and found him to be mentally ill. 1. Was prowling in the police station. 2. Attacked an officer with a knife. Required three officers to subdue him. 3. Delusions.”

The Beport of Commission filed in the County Court on September 29, 1960, and signed by Dr. Mary Zeldes and Dr. William Mundt, states that Marvin Bobertson was ‘ ‘ suffering from abnormal behavior, such as burning his clothes, going off by himself, and wanting to be alone. Schizoid type of behavior.”

The Order of Commitment was entered September 29,1960 in the County Court.

The Hospital Record Progress Notes state that Marvin Robertson was admitted to the Jacksonville State Hospital on September 30,1960. The first notation states that the patient was brought by a Deputy Sheriff from the Macon County Jail, and further states “Read the Report of Commission.” It was signed by a P. Reynolds, who did not testify in the instant case.

Dr. Pedro Dense testified that, at the time of the occurrence in question, he was a ward physician at Jacksonville with the responsibility of making the initial admission note, and the physical and mental examination of the patient. He prepared the Initial Examination for Marvin Robertson, which consisted of a ten or fifteen minute interview, and physical examination, dated September 30, 1960, as follows:

“Brief Statement of Mental Condition—
Patient is alert, quiet and cooperative. Does not talk freely, and seems hostile. His speech is hesitant and very rambling. States that police brought him here. He does not know why, he says, but tells he was in jail, because he was carrying a ‘deadly weapon’ (a kitchen knife). Explains he went to see his brother, he thought he was in the police station, and entered there the wrong way (back door). The police searched him, found the knife, put him in jail, and beat him . . .”

Dr. Dense made no effort to determine what actually did occur at the Decatur Police Station. Since the patient was a veteran, he was immediately transferred to the Veterans’ ward. “This was not my duty to keep investigating about . . . each patient.”

Dr. Dense testified that he did not remember whether the documents entitled “Report of Commission of the Macon County Court”, “Petition for Commitment”, and “Warrant of Commitment” were available at the time he examined Robertson. However, his testimony reveals that Robertson’s record would have made little difference in his disposal of the case. It was, as follows:

“Q. Would I be correct in saying that, regardless of what information you had about a patient, whether he had a history of prior violent attacks on third parties, as long as he wasn’t violent at the time you examined him, he was automatically transferred to Veteran’s Nine?
A. Yes.”

Robertson remained in the admitting ward from September 30 to October 30, 1960. Dr. Dense further testified that he did not know what security measures were taken in Veteran’s Nine, but that it was supposed to be a closed ward, where the patients were kept under surveillance and under observation until the final mental work-up is done. He was not aware that Veteran’s Nine had three separate dormitories or a cafeteria, and did not know the number of patients or the number of attendants in the ward.

Dr. Surab Gram, the ward physician, testified that he handled the daily problems in six wards, including Veteran’s Nine. The diagnosis of a patient took four to six weeks, and during a patient’s stay in Veteran’s Nine the diagnosis was not known. Dr. Gram stated that a normal procedure would be to utilize hospital records in examining and treating the patient, although he could not recall whether he used Marvin Robertson’s records. He stated that, if the folders did not have full summaries, he may not have read his record, although he agreed that good hospital procedure would require the records to be kept up to date.

Dloyd Meyer, a psychiatric aide assigned to Veteran’s Nine in October, 1960, testified that Veteran’s Nine had about ten rooms, and only one psychiatric aide was assigned per shift. There were about twenty-two patients in Veteran’s Nine at the time of the homicide. He testified that one day Clifton (the deceased) came up to him, took him aside quietly, and reported that Bobertson had something hidden in his pocket. He had Bobertson empty his pockets, and took away a bed caster tied with a handkerchief. When Meyer asked why he had it, Bobertson said he didn’t know. Meyer reported the incident to Dr. Gam, who instructed him to give Bobertson a tranquilizer, and said he would see him later. Meyer then noted this in the ward incident book, which is used by the ward attendants for their daily record, and underlined it in red, because he “wanted it to stand out.” Meyer testified that Veteran’s Eight, another diagnostic facility, was available for veterans, if they were combative, and differed from Veteran’s Nine in that two attendants were always on duty.

An entry in the “Progress Notes” of the hospital record, dated October 9, 1960, and initialed by Dr. Gam, states that “Patient removed rollers from bed, tied them in a handkerchief, and hid them in his pocket. When asked why, he stated that he wanted to practice spinning. ’ ’ This was followed by a notation that Compazine had been prescribed. Dr. Gam testified that he had prescribed tranquilizers at that time, but the doses were low, and not for the purpose of keeping the patient harmless, since five times the amount prescribed for Bobertson was normally given for such purposes.

Dr. Gam stated he saw Bobertson about fifteen or twenty times, and he was not combative at these times. He said that, if a patient showed signs of violence outside, he would probably be given special consideration, and would not ordinarily be placed in Veteran’s Nine. Those with homicidal tendencies might be placed in East Hydro, the top security ward, or Veteran’s Eight, which has two attendants twenty-four hours a day, with closer supervision and more restricted freedom than Veteran’s Nine. Dr. Gam testified, upon being shown the Physician’s Certificate from the Macon County Court record, that he had never seen it. Dr. Gam further testified that Marvin Robertson was not diagnosed until after the homicide on October 24, 1960.

Witness, Lloyd Meyer, who worked the shift prior to the homicide on October 24, 1960, said that he did not have occasion to open the cleaning closet wherein the mop equipment was stored, but that the shift preceding his probably had access to it. He did check to see if the closet door was locked. He did not know whether the rollers were missing off the mop equipment.

The attendant in charge of the earlier shift was not called to testify, and respondent states in its Departmental Report that investigation did not reveal the way in which Robertson obtained the instrument used in his attack. 6

Meyer also testified that the mop buckets were subsequently changed from the roller type to the squeeze type, and that, in addition to two attendants now on duty in the Veteran’s Nine Ward, there are more frequent checks of patients and their possessions. He said that the purpose of locking the door in the cleaning closet was to prevent patients from obtaining instruments, which they might use to injure themselves and other patients.

Rubin Sanders, the attendant in charge of the ward during the time of the homicide, testified that he came on duty that night about 11:00. He checked the ward to see if all the patients were in bed, then proceeded to make out his nightly ward reports, which generally take him an hour and a half to complete. He was the only attendant on duty for the three dormitories, and from his station he could see patients going in and out, but could not see into the wards. He did have a patient in the ward, who was designated homicidal and suicidal. This patient was kept in a dormitory by himself at the door where he could be seen from the nurse’s station. Sanders testified that Robertson got up and went into the toilet about 12:00 or 12:15, then returned to the dormitory. Clifton and Robertson were in the middle dormitory with a total of fourteen patients. After Robertson went back to the dormitory, Sanders heard a noise like heavy breathing. A patient called to him to come up there at once. When Sanders got there, he found Clifton injured, and “breathing slower ’ ’, a mop roller was lying between two beds, and Robertson was standing by himself between two other beds. Sanders further testified that after the homicide the supervisory nurse brought Robertson’s records down, and said he was homicidal and suicidal, “but we didn’t know that. ’ ’

Leslie Robinson, Chief Security Officer of the hospital, testified that in investigating the homicide he opened the utility room where the buckets were kept, and discovered that the roller had been removed from one of the buckets, but no one knew when the roller was removed.

The diagnosis of Robertson found in the hospital record is dated October 24, 1960, and includes the following:

“A 21 year old colored male, single, eighth grade education. Has recently been taking training in shoe repair. Ever since he was discharged from the Air Force in 1958, the parents state he has been seclusive, withdrawn and acting peculiarly. He burned his clothing, slept on the floor, preferred to be in the basement at night, and would have a rug over his head. It is possible he has been hallucinating. He lost about fifteen pounds in the past six months. The police picked him up for carrying a concealed weapon (knife), and he was committed to this hospital. On admission, he was quiet and cooperative, would not talk freely; his speech was hesitant and very rambling. He could not explain why he carried a kitchen knife. He admitted hearing voices while in the Air Force. On the ward, he would smile frequently and inappropriately. About ten days earlier, it was reported he had a bed roller wrapped in a handkerchief in his pocket. On the night of October 24, 1960, he struck another patient, who was asleep, with an iron roller from a mop bucket, killing the other patient. At first, he denied having anything to do with it, but, on further investigation, he finally admitted he had struck the patient once, would not give any other explanation. . . .”

The diagnosis further stated that, “in view of the patient’s homicidal tendency, it is recommended that he be transferred to the Illinois Security Hospital” with close supervision as a special precaution.

The question of the degree of care owed by the State in operating a mental institution was determined by this Court in Callbeck vs. State of Illinois, 22 C.C.R. 722 at 728:

“The State, in operating a mental institution and caring for mentally ill persons, is, of course, not an insurer of the safety of its employees. The State is, however, under the same duty as a private person or institution having custody of insane persons. It is required to exercise reasonable care in restraining and controlling dangerous insane persons committed to its custody, so that they will not have the opportunity to inflict a foreseeable injury upon others. Malloy vs. State of Illinois, 18 C.C.R. 137; Fisher vs. Mutimer, 293 Ill. App. 201, 220; Restatement of the Law of Torts, Sec. 319; Smart vs. U. S., 11 F. Supp. 907, 909; Rossing vs. State of New York, 47 N. Y. Supp. 2d 262.”

It is the opinion of this Court that respondent was negligent in the following particulars:

1. Although respondent claims to have had no knowledge of the dangerous and violent character of Marvin Robertson, it is difficult to accept the premise that reasonable precautions to determine the nature of his disturbance upon his commission to the institution would not include an inquiry as to the incidents, which precipitated such commission. Although informed by the patient himself that an incident involving a deadly weapon was at least partially responsible for his commission, no effort was apparently made to read or to obtain the proper public records, which would have detailed the incident, nor was any investigation of such incident even considered. Mere reading of the original “Physician’s Certificate ’ ’, which was or should have been readily available, would have revealed that Marvin Robertson had dangerous propensities.

2. Respondent acknowledges that a sudden, unpredictable assault and physical attack on one patient by another is a constant possibility and calculated risk in any ward of any mental hospital. Assuming this, when the nature of a person’s illness has never been determined, as in this instance, it is unreasonable to place these undiagnosed patients in a virtually unsupervised ward. The mere size and nature of Veteran’s Nine would seem to call for more than one attendant, and, subsequent to the homicide, two attendants were indeed placed on duty. If Marvin Robertson had been supervised, as his case warranted, he would have received the special attention given the one homicidal-suicidal patient in Veteran’s Nine, or he would have been placed in Veteran’s Eight, which took greater security precautions.

3. The incident of the bed caster two weeks before the homicide was apparently of sufficient significance to be placed in the “Incident Book”, and underlined in red, as well as to be used in the final diagnosis, and should have alerted the proper personnel to exercise more precaution over Robertson.

4. In the Departmental Report, respondent states that the investigation did not reveal the way in which the assailant obtained the instrument used in his attack, but the rules governing the storing of equipment are intended to make it impossible for disturbed patients to obtain material, which could be used as weapons. It appears that respondent failed in this instance adequately to safeguard such material.

The second question presented to this Court is the extent of damage sustained by claimant. Claimant testified that at the time of the homicide his son was 32, and claimant was 68. The deceased first experienced mental illness in 1959. He was allegedly never irrational, but had attacks of depression, and found it difficult to perform Ms work. In 1959, Carol Clifton voluntarily entered the Jacksonville State Hospital. He was discharged after a period of 58 days. He earned about $50.00 per month doing odd jobs in the neighborhood, and allegedly contributed this money to the household. He chauffered his father in Ms father’s car, took care of appliances, and assisted claimant in the maintenance of their home and garden, and raised strawberries, raspberries, and rabbits for home consumption and for market.

An evidence deposition by Dr. F. G-. Norbury, physician for the deceased, was submitted by claimant, in which the doctor stated that Carol Clifton suffered from schizophrenic reaction or dementia praecox, characterized by anxiety and depression. It was difficult for the patient to engage in full time productive employment, but he did have a Mstory of engaging in odd jobs for hire, such as mowing lawns and cutting wood. His likely course of illness was stationary with no marked improvement or deterioration. He should not have required continued hospitalization, and could allegedly have assisted Ms father, and could have performed household jobs.

It is noted, however, that, in completing forms at the time Carol Clifton entered the hospital, claimant stated “I support the patient myself.”

It is the opinion of this Court that claimant be awarded the sum of $3,500.00.


text:
    (No. 5049
    Sangamo Construction Company, A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1963.

    Brown, Hay and Stephens, Attorneys for Claimant.

      William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Sangamo Construction Company, seeks recovery of $4,339.50 as the balance remaining on a contract for construction work at the Litchfield Armory at Litchfield, Illinois.

The parties have stipulated in part as follows:

“. . . that Sangamo Construction Company, A Corporation, entered into a contract with the State of Illinois, acting through the Department of Public Works and Buildings on behalf of the Adjutant General, for the complete work for roads, walks, grading, etc., at the Litchfield Armory, Litchfield, Illinois, on June 30, 1961 . . .
“. . . that all work done under said contract has now been completed, as is further shown by the report of the Military and Naval Department. . .
“. . . that total contract price was $30,540.00, of which a total of $26,190.50 has been paid by the State of Illinois, leaving an unpaid balance of $4,339.50, which is now due and owing pursuant to the contract.”

It appears from the record that the appropriation for the project lapsed June 30, 1961, and the project was not satisfactorily completed until April 26, 1963.

The Departmental Report of May 3,1963 states that a final payment in the amount of $4,339.50 is justified.

The only reason for non-payment of this claim by respondent was lapse of the appropriation. At the time that the appropriation lapsed, there were sufficient unexpended funds available to cover the amount of this claim.

There being no question of law or fact in controversy, as reflected by the stipulation of the parties hereto, an award is hereby made to claimant in the sum of $4,339.50.


text:
    (No. 5115
    John Robert Telford, Claimant, vs. The Board of Trustees of Southern Illinois University, Respondent.

      Opinion filed November 12, 1963.

    Miller and Pfaff, Attorneys for Claimant.
    C. Richard Gruny, Legal Counsel for Respondent.
   Perlin, C. J.

Claimant has brought action against The Board of Trustees of Southern Illinois University to recover for damages allegedly suffered as a result of personal injury sustained on June 12, 1961.

Respondent has filed a motion to dismiss on the ground that no notice was filed in the office of the Attorney General and in the office of the Clerk of the Court of Claims within six months from the date of injury, as required by Sec. 22-1 of “An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an Act herein named.” (Ill. Rev. Stats., Chap. 37, Sec. 439.22-1, hereinafter referred to as the Court of Claims Law.) A secondary basis for respondent’s motion is its statement that “the petition is substantially insufficient in law.”

Claimant alleges that a copy of the notice of its claim was mailed to the Trustees of Southern Illinois University on October 24, 1962. Claimant asserts the novel argument that the notice requirements of Sec. 22-1 of Chap. 37 refer only to actions brought directly against the State of Illinois, and do not refer to actions against respondent, The Board of Trustees of Southern Illinois University.

Sec. 22-1 provides as follows:

“Within six months from the date that such an injury was received or such a cause of action accrued, any person who is about to commence any action in the Court of Claims against the State of Illinois for damages on account of any injury to his person shall file in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, either by himself, his agent or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any.” (Added by Act approved July 10, 1957.)

Sec. 22-2 provides:

“If the notice provided for by Sec. 22-1 is not filed as provided in that Section, any such action commenced against the State of Illinois shall be dismissed, and the person to whom any cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury.” (Added by Act approved July 10, 1957.)

Whether Secs. 22-1 and 22-2 refer only to claims against the State of Illinois to the exclusion of other claims cognizable under the Court of Claims Law must be determined according to applicable rules of statutory construction. In Scofield vs. Board of Education, 411 Ill. 11, 103 N.E. 2d 640, the Supreme Court declared at page 642:

“It is a generally accepted principle of statutory construction, and has been so held by this court many times, that, in constructing a statute or determining its constitutionality, all of its sections are to be construed together in the light of the general purpose and plan, the evil intended to be remedied, and the object to be obtained, and, if the language is susceptible of more than one construction, the statute should receive the construction that will effect its purpose rather than defeat it.”

Another applicable rule is stated in I.L.P., Statutes, Sec. 123, as follows:

“In construing a statute to ascertain the intention of the General Assembly, the statute should be constmed as a whole or in its entirety, and the legislative intent gathered from the entire statute rather than from any one part thereof.” Pliakos vs. Illinois Liquor Commission, 143 N.E. 2d 47, 11 Ill. 2d 456; People ex rel Nordstrom vs. Chicago and Northwestern Ry. Co., 142 N.E. 2d 26, 11 Ill. 2d 99; People ex rel Nelson vs. Olympic Hotel Bldg. Corp., 91 N.E. 2d 597, 405 Ill. 440; Ill. Bell Telephone Co. vs. Ames, 4 N.E. 2d 494, 364 Ill. 362.

The patent purpose of notice requirements is to afford respondents an opportunity to promptly and intelligently investigate a claim and prepare a defense thereto, and to thereby protect governmental bodies from unfounded and unjust claims. Donaldson vs. Village of Dieterich, 247 Ill. 522, 93 N.E. 366; Murphy vs. City of Chicago, 318 Ill. App. 166, 47 N.E. 2d 494.

It is the opinion of this Court that, unless the Court of Claims Act specifically states otherwise, the term “State” or “State of Illinois” refers to not only the State of Illinois, but to the State Authority involved in any action cognizable in the Court of Claims. When the Court of Claims Act is read as a whole, this result is inescapable. This is demonstrated, for example, by Sec. 8B of the Court of Claims Law, which states that the Court shall have jurisdiction to hear and determine the following matters:

“B. All claims against the State founded upon any contract entered into with the State of Illinois.”

Nowhere in the statute is the Court of Claims specifically given jurisdiction to hear contract claims against other State Authorities. If claimant’s restrictive interpretation of the statute were adopted, a contract claim against any other State Authority would have no forum. We do not believe the Legislature intended this result.

Claims against The Board of Trustees of Southern Illinois University are of the same family as other claims against the State of Illinois in that any appropriation for an award must be made from the same source — the State Treasury.

In view of the foregoing, this Court holds that it was the intent of the Legislature to apply the notice requirement to all cases cognizable in the Court of Claims (unless the statute specifically states otherwise) in order to protect the State from unjust claims, and to afford it an opportunity for investigation and preparation of a defense.

Respondent’s motion to dismiss for lack of notice is hereby granted.


text:
    (No. 4868
    George Cassidy Sons Co., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 20, 1963.

    Thomas A. Graham and Paul V. Maton, Attorneys for Claimant.
    Grenville Beardsley, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Dove, J.

On April 27, 1959, George Cassidy Sons Company, An Illinois Corporation, filed a complaint seeking an award in the amount of $218,690.58 for damages, extra labor, and material costs incurred in the construction of a new dietary facility at the Kankakee State Hospital.

The complaint recites that the company was awarded contract No. 69662 on June 17, 1957, and that it immediately began construction according to the plans and specifications, which, among other things, provided that the work was to be completed in one year.

Before reciting the difficulties, which occurred on the job, two sections of the specifications should be set forth:

ARTICLE 22
The owner, without invalidating the contract, may make changes by altering, adding to, or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract, except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.
No change shall be made, unless in pursuance of a written order from the Supervising Architect, stating that the owner has authorized the change, and no claim for an addition to the contract sum shall be valid unless so ordered.
The value of any such change shall be determined in one or more of the following ways:
(a) By estimate and acceptance in a lump sum.
(b) By unit prices, named in the contract, or subsequently agreed on.
ARTICLE 64
The General Contractor shall provide his own fuel, apparatus and heat as necessary for the thawing or heating of frozen ground and material, and, in the case of the latter, sufficient heat shall be maintained until material incorporated in construction has taken final set, and all danger of damage by frost is past. This shall in no case conflict with requirements of protection in Masonry Specifications.
Where available, all necessary steam for properly heating the building, or buildings, under construction will be furnished to the General Contractor at no cost, but the contractor shall pay for, and make all necessary arrangements with the Heating Contractor for all connections to and from the nearest available heating main and returns, and also for the furnishing and connecting of all temporary heating units sufficient to maintain an even temperature of at least 60 degrees in the building, or buildings, under construction. Heating period shall be as follows: Approximately October 1st to May 30th unless conditions warrant otherwise, then the final decision shall be made by the Supervising Architect’s representative in the field.

The plans for this facility were prepared by Samuel A. Lichtmann, associate architect. Shortly after the commencement of the work, claimant noticed certain discrepancies in the plans and drawings. Claimant asked for information regarding’ a retaining wall, and the alternative bid to construct it, also specifications for slabs, column footings, floor gratings, extent of attic floor, foundation pilaster, glazed tile, and ceiling heights for the kitchen and dining room.

Soil borings were furnished, by the State, which proved to be inaccurate, as the water table was higher than reported. As a result, the building was raised six inches, and claimant was directed to make the change. The work was delayed, because of differences of opinion with the associate architect as to the necessity of a retaining wall to keep out the water. Thereafter, the associate architect changed his mind, and ordered the retaining wall.

A series of delays thereafter occurred involving steel sash operations, reinforcing steel, color of tile and fabrication of aluminum entrances. The Division of Architecture finally directed claimant to disregard the selection by the associate architect, and it made the selection.

A dispute developed between the Division of Architecture and the associate architect as to the coursing of the masonry, and it was necessary for claimant to run his masonry out of line. As a result, the labor costs were greatly increased.

Final approval of the shop drawings for structural steel were not received until 4% months after the job was started. During this time claimant had large crews of skilled laborers on hand, and he was obliged to pay “show-up” time in order to keep the men available.

In constructing the building according to the plans and specifications, there was a variance in roof heights, with no provision for closure between the two elevations. This prevented claimant from enclosing the building, so that it could use heat furnished by the State, as provided by Art. 64. As a result, claimant was obliged to furnish heaters and fuel oil to protect the then completed work.

Other prime contracts, which were an integral part of the contract, were not immediately awarded, nor correlated with claimant’s work. It further appears that the plans furnished such contractors were inadequate, or changed so, that, as a result, their inability to do the work caused additional delays to claimant.

Finally, claimant contends that he contracted to build the building in 365 days (June 17, 1957 to June, 1958), but, because of incomplete plans, disagreements between the Division of Architecture and Engineering and the associate architect, and changes of plans, he was delayed until March 31, 1959, a delay of 287 days.

Claimant is asking reimbursement from July 1, 1958 to December 31, 1958, and is not making claim for the period of January 2, 1959 to March 31, 1959.

Respondent’s exhibit No. 1 is a copy of the Departmental Report, dated May 7, 1959. It recites in substance :

“1. During the progress of the work, revisions, corrections, alterations, and additional work were necessary to properly complete the project.
2. Claimant’s complaint about lack of correlation with other prime contractors is true, and their delays delayed the claimant.
3. Inadequacies were found in the plans and specifications.
4. Claimant was ordered to make changes, and to delay work pending decisions on other matters.
5. Department is unable to check the figures quoted in claim, since day costs are not part of its duty. Therefore, it is impossible to estimate cost of additional compensation.
6. The Division of Architecture and Engineering has checked the estimated completion time, and has found that, under normal conditions, this project could have been completed within the allotted time.”

Exhibit No. 3 is claimant’s break-down of increased costs, and is the basis of the claim.

INCREASED COSTS

Superintendent ____ 6,500.00

Rental Equipment Compressor __________ .$ 1,950.00

End Loader _________ . 6,825.00

Mortar Mixer ______ . 1,170.00

Welder ________________ 455.00

Trucks (2) __________ . 4,800.00

Heaters (6) ---------- . 7,260.00

Generator ______________ 910.00

Crane ______________________________________________________ 10,400.00 33,770.00

Additional Material (6” glazed tiles)_______________________________2,310.00

Additional Insurance Premiums________________________________________2,090.00

Additional Fuel Costs _________________________________________________________16,835.62

Additional Labor Costs _________________________ 114,893.58

Workmen’s Compensation and Social Security ______________________________________________ 13,775.22 128,668.80

Supervision and Clerical _____________________________________________________28,516.16

TOTAL COSTS ___________________________________________________$218,690.58

Respondent’s exhibits Nos. 3 and 4 consist of hundreds of pages, and contain copies of letters between the department and the associate architect; letters between claimant, the department, and associate architect; change orders; and summaries of joint conferences. The matters therein contained are too voluminous to set forth, but this much is clear, the plans of the associate architect were so inadequate that the department should not have let the contract at the time, and ordinary prudence on the part of claimant should have advised it that this job was headed for trouble.

The notes on the joint conference, held on March 14, 1958, with reference to extras, delays, responsibilities, and procedure, illustrate the problem.

“Twelve ventilating diffusers were in error on the drawing. This held up the construction of the ceiling, lathing and plastering. The associate architect assumes part of the responsibility, as they were prepared by his associate mechanical engineer.
“In another matter, the associate architect complained that he was being by-passed by the department. The associate architect stated that the selection of paint colors and ceramic tile was an architectural function, but the department insisted that it would make its own selections.”

There are many more items covered in the agenda, but the above illustration points out that there was serious bickering between the architects, and much delay was occasioned, because of their inability to agree. Claimant had to stand by while these differences were resolved.

At a hearing held on May 13, 1959, Mr. James N. Graunt, Chief of Construction for the Division of Architecture and Engineering, was called as a witness by claimant. He testified that he was acquainted with this job, as he had visited the site during construction. He stated that he was present at all of the meetings when many of the difficulties were discussed, and changes were made.

He stated that the associate architect prepares the plans and specifications; he determines the work to be done and type of material used. Unfortunately in this case the mechanical, electrical and general plans were not of such a nature that they could immediately be combined. In several cases, we (the department) had to make decisions that were normally his (the associate’s) responsibility, because of his inability or indecision to do so.

Mr. Haunt concluded his testimony by stating that the department did not keep day records, which would enable it to estimate the additional compensation due claimant, but he did state they were entitled to additional compensation.

It appears, therefore, from the testimony, records, and Departmental Report, that claimant performed this contract under the direction of the Department of Architecture and Engineering; that additional costs were incurred by reason of delays and changes; and, that claimant is entitled to additional compensation upon due proof of damages.

Returning to claimant’s exhibit No. 3, the first item is salary of Superintendent, $6,500.00. At page 12 of the transcript, Mr. Leo Cassidy testified that he charged the job for 26 weeks at $250.00 per week, which was the Supervisor’s full salary, and further stated that he was also running other jobs.

Copies of the payroll time sheets disclose that claimant had two contracts at the Manteno State Hospital in progress at the same time. It may be presumed that the supervisor was also being charged to these jobs, and, therefore, the Kankakee State contract should not carry the whole load. Item 1 is, therefore, reduced to $2,166.66.

Item 2 is a claim for rental of equipment in the amount of $33,770.00. Claimant contends that their equipment was tied up from July 1,1958 to December 31, 1958, and that, due to the unwarranted delay, it was not available for other jobs. If, in fact, claimant had to rent equipment for other jobs, its position would be tenable, but the proofs do not support this claim. At page 59 of the transcript, Robert Cassidy was asked:

“Q. Were you required to rent other equipment?
A. In some cases we had to rent other equipment.”

There is no proof in the record to show that claimant was “out of pocket”, because the equipment was at the Kankakee State Hospital from July 1, 1958 to December 31, 1958. Much of this equipment could be transported back and forth from the Manteno job, as the distance is only 12 miles. Since the claimant has failed to show any pecuniary loss, no award will be made for equipment rental.

Item 3 is a claim for additional material, glazed tile, in a total amount of $12,310.00. Upon cross-examination of Robert Cassidy, it appears that claimant included, or should have included, 2x4 glazed tile in its original bid, and the fact that 6 inch glazed tile was used is not material. The witness concluded that the State was entitled to a credit of $2,310.00. In effect, claimant has acknowledged an error, and, therefore, Item 3 for glazed tile will not be allowed.

Item 4 is a claim for additional insurance premium in the amount of $2,090.00. At page 24 of the testimony, it appears that the invoice for insurance amounted to $759.70, rather than $2,090.00. No explanation was given to account for the error. Therefore, the claim will be reduced to $759.70.

Item 5 is a claim for fuel costs in the amount of $16,-835.62, and of this cost, $12,483.00 is for fuel oil. Article 64, heretofore set forth, is ambiguous. Paragraph one requires the contractor to furnish fuel and apparatus at his own cost. Paragraph 2 states that, where available, all necessary steam will be furnished at no cost to the contractor. Claimant contends that, had he been able to finish the work according to schedule, he would have been under roof and used steam. He further stated that he bid the job on the basis of using State steam; otherwise, he would have included a charge for heat.

Page 8 of exhibit No. 3 purports to be an hourly break-down of fuel costs from July 1, 1958 to December 31, 1958. These figures do not jibe with reality. There would be no fuel oil needed for July, August and September, and to charge 3,612 hours of fuel for October, November and December is incredible.

The exhibit states that the crane used 1,040 hours of gasoline. 1,040 hours equals 130 eight-hour working days, and there were only 130 working days from July 1, 1958 to December 31, 1958. A crane is a special piece of equipment, and this Court is not prepared to believe that the crane was used eight hours a day for the 130 working days from July 1, 1958 to December 31, 1958.

In analyzing this page, it would seem that the total fuel costs would cover the entire building period. The first 12 months must be charged to the original contract, while the next six months could be attributed to the delay. In the absence of better proof in this regard, the Court will assume that one-third of the total bill is a fair adjustment, and this item will, therefore, be reduced from $16,835.62 to $5,611.87.

Item 6 consists of a claim for additional labor in the amount of $128,668.80.

The testimony relates that, due to absence, inconsistency or change in plans, masonry walls were erected, torn down, and later reconstructed. Laborers would show up for work, and thereafter be released for the day, and claimant would be obliged to pay for four hours of “show-up” time.

Page 7 of exhibit No. 3 indicates the actual hours of labor performed by each trade. Claimant then includes an estimated number of hours, which should have been the hours required, had the job been completed on time. For example:

MASONS
Actual Hours Estimated Hours Difference Rate Total
13,570.5 6,880 6,690.5 $3.60 $24,085.80

From the above, it would appear that labor for masonry was almost twice the estimated price. A difficulty facing this Court is the use of claimant’s figures as proof of damages. The figure of 6,880 estimated hours for masonry could be entirely self-serving.

The Attorney General did not question the figure, or offer any proofs to the contrary, and did not object to the exhibit being offered into evidence. The only corroboration as to their validity is found in the testimony of James N. Gaunt at page 81:

“Q. As long as you have never seen them (payroll record), would you have any idea whether or not their payroll records are correct?
A. I would not hazard a guess on that. Their payroll records are, in all probability, on file in a couple of departments of the State. I do not think they would dare offer them as evidence if they were not correct. The Department of Labor bases Workmen’s Compensation payments on the basis of their records.”

Pages 2, 3 and 4 of exhibit No. 3 are a break-down of all labor costs from the beginning of the job on June 12, 1957 to December 31, 1958.

The payroll records support the claim from July 3, 1958 to September 10, 1958, but there are no payroll records from September 10 to December 31, 1958. From the claim, the following must be disallowed:

Masons -----------------------------------------133 hours @ $3.60 $ 478.80
Iron Workers -------------------------------165 hours @ 3.475 573.38
Carpenters -----------------------------------409 hours @ 3.20 1,308.80
Laborers ----------------------------------------112 hours @ 2.45 274.40 .
$2,635.38

We are of the opinion that the claim for additional labor costs is excessive, and are, therefore, arbitrarily reducing it by an additional 15%. The labor claim is, therefore, reduced from $114,893.58 to $95,419.47.

The claim for workmen’s compensation, public liability and social security is based on 12% of the payroll records on the reduced amount. This would amount to $11,466.74. As to the proofs under this item. Mr. Robert Cassidy at page 65 of the transcript testified, “We took what we considered a normal percentage in the industry, which was 12% for the total labor cost.”

This statement hardly qualifies as proof, as social security charges during 1958 were 2%% of payroll, and workmen’s compensation charges ranged from 1.74 to 4.45, depending upon the trade and job conditions. Since the burden of proof is upon claimant, and there is inadequate proof, this Court will arbitrarily limit recovery to 6% of the payroll. This would amount to $5,725.17.

Item 8 of the claim relates to supervision and clerical in the amount of $28,516.16, and is based on a charge of 15% of all the items listed, except the claim for Superintendent. 15% of the revised amounts, $109,682.87, would total $16,452.43. This claim, at a rate of 15% for the extras involved, is in keeping with the usual charges of the industry, and is proper.

Page 1 of exhibit No. 3, heretofore referred to, would appear as follows with the deletions noted:

Amount Asked Amount Allowed
1. Superintendent ........................ $ 6,500.00 $ 2,166.66
2. Rental of Equipment -------------- 33,700.00 None
3. Additional Material -------------------- 2,310.00 None
4. Additional Insurance Premiums., 2,090.00 759.70
5. Additional Fuel ............ - 16,835.62 5,611.87
6. Additional Labor............ 114,893.58 95,419.47
7. Workmen’s Compensation and Social Security ________________________ 13,775.22 5,725.17
SUB-TOTAL ______________________ $109,682.87
8. Supervisor and Clerical ------------ 16,452.43
TOTAL __________________________ $126,135.30

Respondent, in its brief, does not deny the essential allegations of the claim, but contends that Article IY, Section 19, of the Constitution:

“The General Assembly shall never grant or authorize extra compensation, fee or allowances to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void; PROVIDED, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion."

prohibits the General Assembly from making any appropriations to pay the claim, and cites Fergus vs. Brady, 277 Ill. 272. J. B. Fergus filed a bill seeking an injunction against the Auditor and Treasurer of the State from paying various sums appropriated by the General Assembly to certain boards and individuals. The bill alleged that appropriations amounting to more than $400,000.00 were illegal, because they were in excess of the revenue authorized to be raised by taxation. Demurrers and special demurrers were filed, and the case was thereafter decided as a matter of law.

The court construed Sec. 18, which is not germane to our case, and with reference to Sec. 19 at page 279, the court stated:

“In Sec. 19, claims under any agreement or contract made by express authority of law are excepted, and, if there is some particular and specific thing, which an officer, board or agency of the State is required to do, the performance of the duty is expressly authorized by law.”

The court then affirmed the trial court, and held there was no express authority of law to authorize the payments.

A recent case decided by this Court, George E. Beardsley vs. State of Illinois, No. 5048, is a perfect example of the application of Sec. 19. In 1961 the General Assembly passed a statute creating the Illinois Industrial Authority. George E. Beardsley was employed as General Manager at a salary of $12,000 per year, and he thereafter set up an office, and engaged clerical help. He was paid his salary and expenses until March 23, 1962, when the Supreme Court found the statute was unconstitutional. The Auditor and Treasurer then refused to issue warrants for unpaid bills, and a claim was filed in the Court of Claims.

This Court held that a statute, found unconstitutional under Sec. 19 of Art. IV of the Constitution, would prevent this Court from making an award, as it would constitute a payment without express authority of law.

The test in this case, therefore, is to determine whether or not there is express authority of law, which would authorize the Department of Public Welfare to enter into this contract, to create additional charges for extras, and be accountable for undue delays.

The largest Code Department of the State of Illinois is the Department of Public Welfare. It employs more than 13,500 persons. It operates 26 institutions, containing more than 10,000 acres, and has under its control 1,430 buildings. It feeds, houses and cares for many thousands of people, and, while the amount of the appropriation does not apear in evidence, it is common knowledge that it amounts to many millions of dollars.

It is also common knowledge that the State is constantly expanding the services of the department by authorizing the construction of new clinics and hospital facilities. Due to the complexity of its operations, it is undoubtedly true that contracts cannot be completed within the biennium, and, as a result, vast sums of appropriated money do lapse.

With this background, it is apparent that the department is authorized by law to expend large sums of money for the ever increasing demands of the State.

Attention is directed to Article 22 of the plans and specifications, wherein the State, as owner, reserves the right to alter, add, or deduct work from the contract, and it agrees to pay by estimate and acceptance of a lump sum or by unit price. This is a standard provision in building contracts, whether the builder be the State or an individual as a practical matter. There is no alternative to the provision, as the State must reserve the right to make changes or add to the work, and it must be assumed that the department will act in good faith, and complete a structure for its best intended use.

The Court, therefore, finds that this contract, with its provisions for changes and alterations, was authorized by law.

This Court has held that, where a contractor has been prevented by the State from completing his contract due to delays, changes in plans, and increased costs, an award will be made.

Blauner Construction Co., An Illinois Corporation, vs. State of Illinois, 22 C.C.R. 538

Divane Brothers Electric Company, A Corporation, vs. State of Illinois, 22 C.C.R. 546

Hyre Electric Co., An Illinois Corporation, vs. State of Illinois, 22 C.C.R. 554

This Court has also held in previous cases that, if funds were available under an appropriation, which could have been used to pay authorized bills, and would have been used, if, in fact, the fund had not lapsed, an award will be made.

M. J. Holleran, Inc., vs. State of Illinois, 23 C.C.R. 17

Standard Oil Co., Indiana, Inc., A Corporation, vs. State of Illinois, 23 C.C.R. 72

Sankey Bros., Inc., A Corporation, vs. State of Illinois, 23 C.C.R. 223

From the Departmental Report, it is apparent that, if the contract had been completed within the biennium, the department would have determined an amount, which it believed was fair and proper, and paid claimant, but, since the appropriation had lapsed, claimant has been obliged to seek redress in the Court of Claims.

The Court, therefore, finds that claimant, George Cassidy Sons Company, A Corporation, is entitled to an award in the amount of $126,135.30.


text:
    (No. 5095
    James Quall, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 20, 1963.

    Jambs Quall, Claimant, pro se.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General for Respondent.
   Dove, J.

James Quall, claimant, filed his claim in this Court on February 27, 1963, alleging:

That he enlisted in the United States Naval Reserve in the Board of Trade Building, Chicago, Illinois on July 14, 1942; that he reported for active duty on September 3,1942, and was honorably discharged on August 3, 1943. On August 4,1943, he accepted appointment as an Ensign in the United States Naval Reserve, and reported for active duty. He was discharged from the Naval Reserve under honorable conditions on June 2, 1944. Attached to the complaint is a copy of a letter received by claimant from the Department of the Navy Board for Correction of Naval Records, and copy of claimant’s honorable discharge from the United States Navy. Claimant requests that an award be made to him under the Illinois Bonus Act.

On October 9, 1963, this Court granted leave to respondent, upon motion duly made, and upon giving notice to claimant, to file a motion to strike and dismiss the claim. No objections were filed to the motion, and this cause now comes on for hearing upon the complaint and motion filed by respondent thereto.

The question presented here concerns Secs. 52 and 65, Chap. 126½, Ill. Rev. Stats. These read as follows:

“All applications for compensation under this Act must he made to the Service Recognition Board before July 1, 1951, and no payment shall be made under this Act except on applications received by the Service Recognition Board before that date.
“Any person, who had a claim which would have been compensable by the Service Recognition Board except that during the period for filing claims such person was ineligible by reason of a dishonorable discharge from service, who prior to July 1, 1953, has or shall have such discharge reviewed, and has obtained or shall obtain an honorable discharge, and any person, who had an amended or supplemental claim pending before the Service Recognition Board on May 20, 1953, but had not by that date submitted sufficient evidence upon which the Service Recognition Board could pay the amended or supplemental claim, shall be entitled to have such claim considered by the Court of Claims, and to have an award on the same basis as if his claim had been fully considered by the Service Recognition Board.”

Claimant does not allege that he obtained an honorable discharge prior to July 1, 1953, nor does he allege that he had a claim pending before the Service Recognition Board on May 20, 1953. In our opinion both allegations are necessary before this Court could make an award to claimant.

The decision of the Board for Correction of Naval Records, under the date of April 26, 1962, reads as follows:

“Decision — It is the decision of this Board that petitioner’s dismissal be changed to a separation under honorable conditions.”

We are of the opinion that the complaint filed herein does not state a cause of action, which would entitle claimant to an Illinois Bonus. (Sargeant vs. State of Illinois, 22 C.C.R. 475.)

It is the opinion of this Court that the motion to strike the complaint filed herein should be, and the same is hereby allowed, and the complaint filed herein dismissed.


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    (No. 5120
    Frank Hubbard Electric Co., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 20, 1963.

    Downing, Smith, Jorgensen and Uhl, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Frank Hubbard Electric Co., A Corporation, seeks recovery of $283.00 as the balance remaining due on a contract for electrical work at the Litchfield Armory Building, Litchfield, Illinois.

The parties have stipulated in effect as follows:

“Claimant, on June 22, 1961, submitted a firm bid in the amount of $725.00 for electrical work on the Litchfield Armory Building;
“The acting supervising architect for respondent accepted said bid by letter, dated June 30, 1961;
“Claimant completed the work in accordance with the plans and specifications, and, on November 27, 1961, made an application for a certificate of payment for the final payment of $225.00;
“Claimant received a letter, dated May 17, 1962, from the acting supervising architect for respondent stating that the funds necessary to pay claimant were no longer available, and that it would be necessary to file a claim with the Court of Claims;
“That, upon request of the acting supervising architect, claimant did an additional $58.00 worth of work on said Litchfield Armory, not called for in the original contract between the parties;
“That there is now due and owing to claimant by respondent the amount of $283.00."

It appears from the record that the appropriation for the project lapsed June 30, 1961, and the project was not completed until September 15, 1962.

The only reason for non-payment of this claim by respondent was the lapsing of the appropriation. At the time that the appropriation lapsed, there were sufficient unexpended funds available to cover the amount of this claim.

There being no question of law or fact in controversy, as reflected by the stipulation of the parties hereto, an award is hereby made to claimant in the sum of $283.00.


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    (No. 5065
    Herschel L. Sunley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 28, 1964.

    Dale Templeman, Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Herschel L. Sunley, seeks to recover the sum of $2,844.00 for constructing two wash racks at the Illinois State Fair Grounds in Springfield, Illinois.

The Departmental Report of the Department of Agriculture, submitted by Louis London, Assistant State Fair Manager, states in part as follows:

“1. Mr. Sunley was the general contractor at the Illinois State Fair residing in Springfield, Sangamon County, Illinois.
2. Mr. Sunley was employed by the Department of Agriculture, Division of Illinois State Fair, during the months of May, June and July, 1960 to perform various duties of contracting work, and to furnish certain materials, as requested by the general manager.
3. J. Ralph Peak, who was General Manager at the time, requested Mr. Sunley to furnish all labor and materials to erect two livestock wash racks, one being between Barns L and M, and the other between Barns N and O at the State Fair Grounds.
4. Mr. Sunley and his men performed all work, and furnished material to erect the two wash racks, which were later accepted by the Department during the month of July, I960, and are still in use.
5. As far as I know, payment has not been made to the claimant for any of the work done on these two wash racks.”

Mr. Sunley, who was the only witness called by either of the parties, testified that he presented two proposals for the construction of wash racks to the Department of Agriculture, State of Illinois, in 1960, one calling for work and materials in the amount of $1,478.00, and the other calling for work and materials in the amount of $1,366.00. Copies of such proposals were received in evidence.

Mr. Sunley further testified that the proposals were accepted by the ■ Department of Agriculture, and that he thereafter performed the work. The labor and materials were accepted by the State, and the State has been using the wash racks since they were erected. Sunley stated that he has been paid nothing for the work, and that $1,478.00 and $1,366.00, respectively, are due him for the two jobs. The jobs were completed about August 1,1960. Mr. Sunley testified that a bill submitted shortly thereafter was not paid.

Since there appears to be no dispute concerning the fact that claimant was engaged to construct the two wash racks, and that the work was performed satisfactorily, claimant is hereby awarded the sum of $2,844.00.


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    (No. 5067
    Jack Muse, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 28, 1964.

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

Claimant, Jack Muse, Inc., seeks recovery in the amount of $1,493.95, as the balance remaining due on a contract with the State of Illinois, acting by and through its Department of Public Works and Buildings, Division of Architecture and Engineering, for mechanical work at the Litchfield Armory, Litchfield, Illinois.

The net amount of claimant’s contract, dated June 30,1961, was $4,289.00. Jack Muse, President of claimant corporation, testified that claimant had completed all work under the contract, and had been paid $2,795.65, leaving a balance of $1,493.35.

The Departmental Report of the Military and Naval Department, to which the funds had been appropriated, stated that claimant had completed the provisions of the contract, and inspection and approval had been made on April 26, 1963, “which now justifies final payment in the amount of $1,493.35.” The Report, signed by Donald R. Grimmer, Assistant Adjutant General, also stated that the reason for nonpayment was that the contract was not completed by September 30, 1961, when the funds were lapsed and returned to the General Revenue Account.

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 contracts were entered into, this Court will enter an award for the amount due. National Korectaire Co. vs. State of Illinois, 22 C.C.R. 302, 305.

It appears that all qualifications for an award have been met in the instant case. Claimant is hereby awarded the sum of $1,493.35.


text:
    (No. 5127
    John W. McDonald, Claimant, vs. The Teachers College Board, Respondent.

      Opinion filed February 28, 1964.

    Anderson and Anderson, Attorneys for Claimant.
    Dunn, Dunn and Brady, Attorneys for Respondent, The Teachers College Board.
   Dove, J.

Claimant filed his complaint in this Court on October 18, 1963 alleging:

1. That claimant resided at 509 Nichelson Street, Joliet, Illinois;

2. That on the 4th day of September, 1961, claimant, prior to the commencement of the first semester of the academic year 1961-1962, was engaged in the practice of football at Northern Illinois University, DeKalb, Illinois, under the direction and supervision of the Athletic Department of said University;

3. That on the said 4th day of September, 1961, while so participating in the said practice of football, claimant received a blow to his left knee, thereby injuring the same;

4. That on the 5th day of September, 1961, claimant reported to Dr. Otto J. Keller, Director of the Student Department of Health Service, and was advised by the said Dr. Otto J. Keller of the necessity for consultation with an orthopedic specialist:

5. That upon consultation with Dr. Frank H. Hedges, Jr., claimant’s family orthopedic specialist, it was found necessary that claimant submit to an operation ; that said operation was performed on the 23rd day of December, 1961; and that all expenses of said operation have been borne and paid by claimant, and without reimbursement of any kind or nature;

6. That the expenses of the operation, as set forth in Paragraph 5, amount to the sum of $831.25, and that, after allowing all set-offs, there is now due and owing claimant by respondent the sum of $831.25;

7. That the said claim has been presented to Northern Illinois University for payment, and the said University, by and through its Athletic Director, George G. Evans, and its co-ordinator of Student Financial Aid, Philip L. Shields, has denied payment of said claim on the grounds that no funds were available to pay said claim; that claimant is the sole owner of said claim; that claimant has made no assignment or transfer of interest thereof, and prays judgment against respondent herein in the sum of $831.25.

Attached to the complaint is exhibit A, which sets forth the amount of the doctor’s statement and hospital bills, totaling $831.25.

On November 7,1963, respondent, The Teachers College Board, filed a motion to dismiss this matter, and furnished therewith a proof of service of a copy on counsel for claimant. No objections were filed to the motion, and this cause now comes on for hearing upon the complaint and motion filed by respondent thereto.

The question presented here concerns Chap. 37, Secs. 439.22-1 and 439.22-2 of the 1961 Ill. Rev. Stats., which reads as follows:

“Within six months from the date that such injury was received or such a cause of action accrued, any person, who is about to commence any action in the Court of Claims against the State of Illinois for damages on account of any injury to his person, shall file in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any.
“If the notice provided for by Section 22-1 is not filed as provided in that section, any such action commenced against the State of Illinois shall be dismissed, and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury.”

Claimant does not allege that he has filed notice, as provided by the above statute, and we are, therefore, of the opinion that the complaint filed herein does not state a cause of action, which would entitle claimant, John W. McDonald, to recover from respondent, The Teachers College Board.

It is the opinion of this Court that the motion to strike the complaint herein be and the same is hereby allowed, and the complaint filed herein dismissed.