text:
    (No. 77-CC-1280
    Warchol Construction Co., Inc., Claimant, v. State of Illinois, Respondent.

      Opinion filed July 2, 1979.

    Louis C. Warchol and Nicholas S. Azgone, Attorneys for Claimant.
    William J. Scott, Attorney General; Francis Donavan, Assistant Attorney General, for Respondent.
   Holderman, J.

This claim arises as a result of a contract entered into on or about May 17, 1973, between Claimant and the Capital Development Board of the State of Illinois for the general construction work of the Davea Center in DuPage County, Illinois.

The work of the general contractor was to include excavating, backfilling, grading, sitework and applying base and bituminous (asphalt) paving of the Ring-road around said building and service area and parking lots on the north, south and west sides of the building.

The construction work began in June, 1973. It appears that in late September or early October 1973, the architect’s representative issued a verbal stop-order concerning the on-going grading and paving on the south side of the building until such time as the architect could issue a bulletin which would price out the value of certain planned change-orders and modifications which would alter the elevations of the existing grades, increase the water retention pond and the installation of four new catch basins and storm sewers all located on the south side of the building.

It further appears that the architect did follow-up his stop-order with Bulletin No. 4 on October 8, 1973, and further issued revised drawings changing the elevations in these areas. It appears the following changes were requested:

(a) Re-location and enlargement of retention pond.
(b) Add four catch basins (two in the middle of south ringroad) and add new storm lines.
(c) Raise the grade of the south parking lot 18 inches in the center.
(d) Raise the grade of the south ringroad approximately 4 inches.
(e) Raise the grade approximately 4 inches at parts of the service area.

Pursuant to said stop-order, no work was done by the Claimant-contractor concerning the grade elevations or the paving operation in the south parking lot, south service areas or the south portion of the ringroad with the exception of the base course being put in the south portion of the ringroad, so that there would be access to the building site.

During the same period of time, to-wit: in October 1973, the Claimant-contractor was able to and did complete the grading, leveling and applying of bitunimous (asphalt) paving in the north parking lot and other portions of the ringroad.

During this period of time, the cost of construction, and in particular the cost of asphalt, was escalating daily, sometimes rising two or three times a day. During the winter months when it was impossible to do any grading and asphalt paving, no work was done.

Before Bulletin No. 4 could result in a change-order being issued, the architect’s representative on April 5, 1974, issued another bulletin, Bulletin No. 8. This was six months after the grading and paving had been stopped and this bulletin again changed the grades and elevations on the south side of the building.

As a result, Bulletin No. 8 resulted in a change-order request No. 43 which contained the final grades and elevations and paving to be installed on the project.

The Capital Development Board did not approve and forward the signed change-order request No. 43 to Claimant until January 3, 1975.

The evidence is that the work on the revised elevations, grading and paving was done by Claimant in the Spring and Summer of 1975 at an additional cost of $73,510.90, which cost was due largely to increased costs for asphalt, grading and paving.

The evidence shows that the stop-order actually affected part of the south ringroad and south area and 90 percent of the south parking lot.

The record discloses that Claimant had a subcontract with the John Ward Paving Company for the grading and bituminous paving at the site in the amount of $125,321.00. Ward commenced work on said project and did complete grading and paving of part of its contract for which it was paid $47,000.00, leaving a balance of $78,321.00 unfinished on its contract. Ward refused to perform under the contract because of increased cost of asphalt. Thereupon, the balance of Ward’s contract was awarded to Rock Road Construction Company who was paid $151,831.90 to complete said contract. This amount is $73,510.90 in excess of the amount remaining in Ward’s contract.

Testimony was given by one Ray J ensen of Claimant’s construction company to the effect that 75.33 percent of the total uncompleted job was affected by the stop-order, and Claimant’s evidence indicates that the sum of $55,375.76 is the amount of damages it sustained by the unreasonable delay caused by the architect’s stop-order.

Claimant also requests the sum of $17,720.24 as interest due it for non-payment of the principal amount.

The evidence is uncontradicted that the delays were caused as a result of the various changes in plans of the State and that unfortunately these changes in plans occurred so that when the contractor could resume work, the weather conditions during the winter months were such that they could not be completed. It is also uncontradicted that the costs of construction particularly that of asphalt, were rising almost daily as a result of the Arab oil embargo.

Ordinarily a contractor is bound by the terms of his contract and must perform under the terms of said contract unless the other party to the contract, in this case, the State, by its own actions causes the additional costs. The record is undisputed in the present case that the delays were caused by changed orders of the State from which the contractor could not protect itself and, as a result of said changed orders, Claimant did sustain considerable loss.

This Court, in the case of Blades, Inc. v. State of Illinois, 30 Ill.Ct.Cl. 388, laid down the rule that “contractor is entitled to damages caused by mistake in bid plans prepared by the State.”

The Court believes the present case falls within the scope of the above-cited decision.

The Court also believes the unreasonable delay caused by Respondent when it issued its stop-order, coupled with the cold weather and the Arab oil embargo, resulted in a substantial escalation of the cost of asphalt and other construction costs.

It is the opinion of this Court that Claimant is entitled to the sum of $45,000.00 in payment of additional costs and an award is hereby entered in that amount.


source: Caselaw Access Project

author: Polos, C.J.

license: Public Domain

text:
    (No. 77-CC-1310
    Samuel Cagle, Claimant, v. State of Illinois, Respondent.

      Opinion filed July 6,1978.

   Polos, C.J.

This is a claim brought by Samuel S. Cagle, an inmate of Stateville Correctional Center, for the loss of certain items of personal property of the alleged value of $943.13.

At the hearing of this cause, Claimant established by the preponderance of the evidence that on June 25, 1976, he was a prisoner in the Illinois State Penitentiary, Menard branch. He was ordered transferred to the Stateville branch. On the day in question he was the owner and had in his possession in his cell at Menard various items of personal property. In transferring these items, prison officials had Claimant stand in his cell and pass each item to one Officer Smith, who was standing outside the cell. Officer Smith listed each item on a multi-copy inventory form, and saw that each item was dropped into a box for shipping.

A copy of the inventory list, signed by Claimant and by Officer Smith, was attached to Claimant’s complaint.

The inventory includes a television set, a tape player, and a radio-phonograph, as well as numerous items of clothing and toiletries.

With the exception of certain letters, none of the property that Claimant turned over to Officer Smith was ever returned to him.

Respondent acknowledges that the property was never received at Stateville and never delivered to Claimant. Also attached to Claimant’s complaint is a copy of a memorandum, dated December 21,1976, from Stateville Warden David H. Brierton to Claimant, stating as follows:

“Assistant Warden Wallenstein recently interviewed you on a Call Line in the Safekeeping Unit. You expressed concern about property which you had not received since your transfer to Stateville from Menard Correctional Center. We have reviewed our personal property records and have determined that the property definitely did not arrive at Stateville with you. Efforts to locate the property at Menard have not been successful, though we will make an additional effort in this area on your behalf. You can expect to receive additional information within one week. I hope this information is responsive to your request.”

Claimant is also claiming the loss of a man’s wedding ring which he was allowed to wear when he left Menard, but which was taken from him on arrival at Stateville and never returned to him.

This Court held in Doubling v. State, 32 Ill.Ct.Cl. 1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created betwen an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence. Claimant’s prima facie case, therefore, stands unrebutted.

In view of the fact that some of the larger items lost by Claimant had been in his possession since 1972 and 1973, the Court must make allowance for depreciation. It is therefore ordered that Claimant be and hereby is awarded the sum of $400.00.


author: Per Curiam.

text:
    (No. 77-CC-1319
    King Scott, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 4, 1978.

    Nate Finn, Attorney for Claimant.
    William J. Scott, Attorney General; Glen P. Larner, Assistant Attorney General, for Respondent.
   Per Curiam.

This claim coming on to be heard on the joint stipulation of the parties hereto, and the Court being fully advised in the premises.

This Court finds that Claimant, King Scott, seeks recovery of $1,000.00 for damages incurred from being attacked and beaten by a patient at Manteno Mental Health Center.

The joint stipulation entered into between the parties, to which was attached the departmental reports of the Department of Mental Health, contained the following information:

On July 24,1975, King Scott was in the parking lot outside of the security building at Manteno Mental Health Center, his status being that of an authorized visitor to the institution. While Claimant Scott was waiting in his car in the parking lot, he was approached and attacked by a Leroy Johnson for no apparent reason.

Patient Johnson had a history of violent behavior and it was noted throughout his medical history that he had assaulted other people without warning or provocation. Despite the known propensity of Leroy Johnson for violence towards others, he was given a grounds pass by the staff which allowed him to go unaccompanied into areas frequented by visitors.

There was no indication that Claimant provoked patient Johnson in any way, or that Johnson had any rational reason for attacking Claimant. Upon questioning the patient about this incident, he stated, “I hit him in the face because he put a spell on my cigarette.”

From the foregoing facts, it appears that Respondent knew that Leroy Johnson was a violent individual and, therefore, should not have allowed him to enter the visitor area unattended. It appears further that Claimant was exercising due care for his own safety. The joint stipulation states both that Respondent was negligent in allowing the incident to happen and that Claimant used due care for his own safety.

This Court has held on previous occasions that the State is required to exercise reasonable care in restraining and controlling dangerous persons committed to its custody, so that they will not have the opportunity to inflict a foreseeable injury upon others. Malloy v. State, 18 Ill.Ct.Cl. 137; Callbeck v. State, 22 Ill.Ct.Cl. 722; Maloney v. State, 22 Ill.Ct.Cl. 567.

Both parties have stipulated that the amount of Claimant’s loss is $850.00.

Claimant, King Scott, is hereby awarded damages in the sum of $850.00.


text:
    (No. 77-CC-1335
    Willie E. Mc Neal, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 22, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has proved by preponderance of the evidence that on January 27, 1977, during a strip down search of his cell by two employees of Statevillle, took possession of Claimant’s 18 carat gold cross with three chip diamonds on a chain, and a small locket with a photograph of his wife and daughter. Claimant estimates that the items cost $225.00. The items were not contraband, and the institution has failed to return them to Claimant.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant has proven that the State, as bailee, took actual physical possession of his property. The State has failed to rebut the presumption of negligence which arises when a bailee loses property entrusted to its possession.

It is therefore ordered that Claimant be, and hereby is awarded the sum of $175.00.


text:
    (No. 77-CC-1414
    Maurice Pendleton, Claimant, v. State of Illinois, Respondent.

      Opinion filed August 28, 1978.

   Polos, C.J.

Claimant, an inmate of the Stateville Correctional Center, has brought this action to recover the value of certain items of personal property which he alleges were lost during the course of its transfer from State-ville Correctional Center to Cook County Jail. These items consisted of a radio, chess set, cigarettes and personal care items valued at $50.73.

That Respondent has filed with the Court a stipulation by Respondent as well as a departmental report indicating that the, “Department of Corrections has no evidence to refute the allegations contained in Claimant’s verified complaint.”

Claimant’s prima facie case therefore stand unrebutted.

It is therefore ordered, that Claimant be, and hereby is awarded the sum of $50.73.


text:
    (No. 77-CC-1430
    Ira J. Coleman, Jr., Claimant, v. State of Illinois, Respondent.

      Opinion filed November 2, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has established that when he was transferred from the Minimum Security Unit of the State-ville Correctional Center to the wall enclosed compound, certain items of underclothing, towels, a safety razor and cigarette lighter, having the value of $20.81, were not delivered to him.

Respondent has acknowledged its liability for the loss of these items.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession "thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant’s prima facie case therefore stands unrebutted.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $20.81.


text:
    (No. 77-CC-1477
    Cheri A. Wood, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 15, 1979.

   Per Curiam.

This claim arises out of an employee request for payment of standby pay not included on her payroll vouchers for payroll periods from December 1, 1975, through February 8,1976.

The Claimant in the case at bar pursued her request for back standby pay through a Facility Level Grievance where she was found to have been entitled to standby compensation, inasmuch as the reason she did not receive payment for the same was that the time was not recorded by the timekeeper as it was scheduled and the payroll office of the local facility was not aware of it and payment was, therefore, not made.

The amount claimed is $391.68 and is from the period of time December 1, 1975 through February 2, 1976.

Ill. Rev. Stat., Ch. 127, para. 145, provides as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the date specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon effective date of a collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed. (Emphasis added)

The first part of the above cited statute is a clear and unequivocal prohibition of any additional payments “for work already performed” for payroll periods “for which remuneration had already been made,” and presumably accepted, while the latter portion makes two exceptions to the general prohibition. The two exceptions are the retroactive payment to tradesmen who are paid in accordance with the pay scale prevailing in the geographic area of their employment, and the second exception has to do with claims for retroactive pay “based upon the effective date of a collective bargaining agreement.”

Neither of these exceptions is involved in this case. This case involves an administrative error in failing to properly credit the Claimant for standby time or compensate accordingly.

In the case of Poskus v. State of Illinois, 26 Ill.Ct.Cl. 107, this Court awarded a half-time doctor a retroactive salary adjustment, after quoting from para. 145 stating in part:

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

In the case at bar, not only should this claim be awarded because of the State’s error in recordkeeping, but it should be granted because it is not prohibited by Ch. 127, para. 145.

As stated earlier, it is the opinion of the Attorney General that the Legislature did not intend that para. 145 of ch. 127 provide a means by which errors, either clerical or otherwise, made by the State work for the benefit of the State at the expense of its employee.

The position stated in this memorandum is not a position grounded in equity or good conscience by one of law. A cardinal rule of statutory construction is to ascertain and give effect to the true intent and meaning of the Legislature enacting a law. Electrical Contractors Association of the City of Chicago v. Illinois Building Authority, 33 Ill. 2d, 587. Where an employee is erroneously paid for less time than actually put in, he or she is being erroneously paid too little salary and has, therefore, not been previously paid for services performed. As such retroactive payments would not be payments “for which remuneration had already been made” the exclusion contained in para. 145 would not apply. We find the Claimant is entitled to back salary in the gross amount of $391.68 plus employer contributions of $49.15 for a total employee benefit of $440.83.

It is therefore ordered that Claimant be and is hereby awarded the total employee benefit of $440.83.


text:
    (No. 77-CC-1517
    Juan Robinson, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 9,1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant contends that during the course of his transfer from the Hanna City Youth Correction Center to the Youth Correction Center in St. Charles, Illinois, certain items of clothing, allegedly having a value of $439.06 were lost.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an imate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

On consideration of the record herein, the Court finds that authorities at the Hanna City Center did in fact dispose of Claimant’s clothing rather than ship it to him at St. Charles. However, Claimant’s testimony was not clear with respect to either the exact items involved, or their cost. The Court finds that the items allegedly lost by Respondent had a value of no more than $100.00 at the time of the loss.

It is therefore ordered, that Claimant be and hereby is, awarded the sum of $100.00.


text:
    (No. 77-CC-1536
    Rice Gibson, Claimant, v. State of Illinois, Respondent.

      Order filed August 9, 1978.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Cliamant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl.__, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling v. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 77-CC-1539
    Sylvia V. Miniz, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 15, 1979.

   Per Curiam.

This claim arises out of an employee request for payment of standby pay not included on her payroll vouchers for payroll periods from December 8, 1975, through January 25, 1976.

The Claimant in the case at bar pursued her request for back standby pay through a Facility Level Grievance where she was found to have been entitled to standby compensation, inasmuch as the reason she did not receive payment for the same was that the time was not recorded by the timekeeper as it was scheduled and the payroll office of the local facility was not aware of it and payment was, therefore, not made.

The amount claimed is $352.80 and is from the period of time December 8, 1975, through January 25, 1976.

Ill. Rev. Stat., Ch. 127, para. 145, provides as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the date specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon effective date of a collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work of already performed. (Emphasis added)

The first part of the above cited statute is a clear and unequivocal prohibition of any additional payments “for work already performed” for payroll periods “for which remuneration had already been made,” and presumably accepted, while the latter portion makes two exceptions to the general prohibition. The two exceptions are the retroactive payment to tradesmen who are paid in accordance with the pay scale prevailing in the geographic area of their employment, and the second exception has to do with claims for retroactive pay “based upon the effective date of a collective bargaining agreement.”

Neither of these exceptions is involved in this case. This case involves an administrative error in failing to properly credit the Claimant for standby time or compensate accordingly.

In the case of Poskus v. State of Illinois, 26 Ill.Ct.Cl. 107, this Court awarded a half-time doctor a retroactive salary adjustment, after quoting from para. 145 stating in part:

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

In the case at bar, not only should this claim be awarded because of the State’s error in record keeping, but it should be granted because it is not prohibited by Ch. 127, para. 145.

As stated earlier, it is the opinion of the Attorney General that the Legislature did not intend that para. 145 of ch. 127 provide a means by which errors, either clerical or otherwise, made by the State work for the benefit of the State at the expense of its employees.

The position stated in this memorandum is not a position grounded in equity or good conscience but one of law. A cardinal rule of statutory construction is to ascertain and give effect to the true intent and meaning of the Legislature enacting a law. Electrical Contractors Association of the City of Chicago v Illinois Building Authority, 33 Ill. 2d, 587. Where an employee is erroneously paid for less time than actually put in, he or she is being erroneously paid too little salary and has, therefore, not been previously paid for services performed. As such retroactive payments would not be payments “for which remuneration had already been made” the exclusion contained in para. 145 would not apply.

It is therefore ordered that Claimant be and is hereby awarded the total employee benefit of $397.08.


text:
    (No. 77-CC-1564
    Charles Beco, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 22, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has proven, by a preponderance of the evidence, that he ordered an eight track FM radio-tape player from Monroe Merchandisers, Inc., of Chicago, Illinois, which was delivered to the Pontiac Correctional Center on April 11, 1977. The cost of the merchandise, including tax and delivery, was $95.73. On April 11, 1977, United Parcel Service delivered the package to the gate house at Pontiac, and a receipt was signed by one Sergeant Staley. The package, however, was never delivered to Claimant.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes form Wooodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant has proven that the State of Illinois, as bailee, took possession of his radio-tape player, and that the radio-tape player was never delivered to him. Under these circumstances a presumption arises that the State of Illinois was negligent in caring for Claimant’s property, and the State of Illinois has presented no evidence to rebut that presumption.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $95.73.


text:
    (No. 77-CC-1615
    Henry Willis, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 1, 1979.

   Polos, C.J.

This is a claim brought by Henry Willis, now a prisoner at Stateville, but formerly at the Jdiet Correctional Center.

At the hearing of this cause the following facts were established:

On June 10,1977, Claimant was in confinement at the Cook County Jail, Chicago, Illinois, preparatory to transfer to the Joliet Correctional Center at Joliet, Illinois. He had in his possession a large quantity of personal property items which he had packed in two milk crates and which were transferred with him from the Cook County Jail to Joliet.

On arrival at the Joliet Diagnostic Depot he went through the normal processing procedures. His property was taken from him and examined for contraband. However, when the processing was completed, all of his property was not returned to him, even though it was not contraband in nature. He instituted grievance procedures but the missing property could not be found. He testified that the items taken from him by the prison authorities on his arrival at Joliet and never returned to him had a value of $107.73.

This Court has held on many occasions that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of an inmate’s transfer between penal institutions.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant’s prima facie case, therefore, stands unrebutted.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $107.73.


text:
    (No. 77-CC-1647
    Crofford Holifield, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 22, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has proved by a preponderance of the evidence that the State took actual physical possession of a rug, valued at $3.00, when Claimant was transferred from the Vandalia Correctional Center to the Pontiac Penitentiary, at Pontiac, Illinois. The State failed to deliver the rug to Claimant upon his arrival at Pontiac.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an imate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one on possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co., of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant has established that the State, as bailee, took physical possession of his rug, and failed to return it to him. A presumption of negligence therefore arises, which the State of Illinois has failed to rebut with any evidence.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $3.00.

Claimant had also sought compensation for bailing hay during June, 1977, as well as for other assigned work while in prison. In review of the evidence herein, the Court finds that Claimant is not due additional sums for work performed while in prison.


text:
    (No. 77-CC-1731
    Bobby J. Rollins, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 11, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

At the hearing of this cause, Claimant established that prior to July 7, 1977, he was an inmate of the Vienna Correctional Center, and had in his possession certain items of property. On that date he was transferred to the Stateville Correctional Center at Joliet, but was not allowed to take his property with him. On his arrival at Joliet some of his property was returned to him, but other items were not.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence. Claimant’s prima facie case therefore stands unrebutted.

The only evidence presented by Claimant relating to the value of the items lost while in the possession of the State, was his estimates of their value. We have carefully considered Claimant’s testimony as to the items lost, and find that they had a value on July 7, 1977, of $200.00.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $200.00.


text:
    (No. 77-CC-1751
    Raymond J. White, Claimant, v. State of Illinois, Respondent.

      Opinion filed June 28,1978.

   Polos, C.J.

This is a claim brought by Raymond J. White, formerly an inmate of Joliet Correctional Center in Stateville, for the conversion of certain items of clothing.

On or about January 18, 1976, Claimant had purchased certain items of new western clothing at the Libertyville Tack Shop, Libertyville, Illinois, namely, a sheep lined leather jacket for $175.00, a sport shirt for $32.95, a pair of sport slacks for $36.95, and a lizard skin belt for $22.95. He wore these clothes to his trial on January 23,1976, at the Oak Lawn Court House in Oak Lawn, Cook County, Illinois. He was convicted and that same day sent to the Cook County Jail. Following his conviction, his wife tried to bring other clothes to him while he was still in the Oak Lawn bull pen and while he was at the Cook County Jail, but she was not permitted to give him the change of clothing.

On January 30, 1976, Claimant was transferred from Cook County Jail to the Diagnostic Depot, Joliet Correctional Center, Joliet, Illinois

At Joliet he was issued prison clothing in place of the recently purchased clothing he was wearing. He told one Lt. Hefley, the officer in charge of the receiving process, that he would either pay to have his clothing shipped home or his wife would pick the items up.

Lt. Hefley gave him Official Receipt No. 04214 and told him to sign it. The receipt had his name, number, and the date on it, but otherwise it was blank. With a pen furnished by Lt. Hefley, Claimant listed his leather jacket, sport shirt, sports slacks and leather belt. That night in his cell, with a different pen, he wrote in the prices he had paid for the items.

About three weeks later his wife came to J oliet to pick up his clothing and was told that someone else had picked them up on January 9,1976, which was prior to the date of his trial.

The Joliet Correctional Center, in a memorandum dated November 14, 1977, forming part of the Departmental Report, indicated that an investigation conducted by it produced no information as to the disappearance of Claimant’s clothing.

“Lieutenant Hefley was shown the attached copy of the Joliet Correctional Center, Official Receipt — Trust Fund receipt and stated that the signature was his, but could not identify the other witness’s signature and could not say what happened to the resident’s clothing . (The trust fund receipt is dated January 30,1976.)”
“No records, other than the trust fund receipt, showing that this institution received this clothing, could be obtained to the whereabouts of Resident White’s clothing and no information could be obtained as to the whereabouts of Resident Whites clothing during this investigation.”

This Court has held in Doubling v. State of Illinois, 32 Ill.Ct.Cl.1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of an inmate’s transfer between penal institutions.

In Bonner v. Coughlin, 517 F. 2d 1311 (1975), our Court of Appeals, acknowledged a prisoner’s rights to sue in the Illinois Court of Claims for loss of property occasioned by the negligent acts of State employees.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App 2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows:

“An actual contract or one implied in fact, is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principals of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and prima facie case, therefore, stands unrebutted.

It is therefore ordered that Claimant be awarded the sum of $267.85.


text:
    (No. 77-CC-1760
    Mario Alfaro, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 2, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record herein establishes without contradiction that on March 2,1977, a 13 inch Zenith television set, costing $355.95, was delivered to Stateville Correctional Center by Polk Brothers of Joliet, Illinois, for delivery to Claimant. The television set was received by one Sgt. Adams at the gate of the institution, but disappeared before it was delivered to Claimant.

Respondent has conceded liability for the loss of the set.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under the circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $355.95.


text:
    (No. 77- CC-1766
    Thomas J. Murphy, Claimant, v. State of Illinois, Respondent.

      Order filed April 18, 1979.

   Polos, C.J.

This cause is before the Court following oral argument on Claimant’s petition for a rehearing.

The case involves construction of Ill.Rev.Stat. Ch. 127, 132.11-1, which provides, in pertinent part:

“It is unlawful for any person... employed in any of the offices of state government... to have or acquire any contract, or any direct pecuniary interest in any contract therein, whether for stationery, printing, paper or for any services, materials or supplies, which will be wholly or partially satisfied by the payment of funds appropriated by the general assembly of the State of Illinois ...”

Claimant is a former employee of the Illinois Liquor Control Commission. He had been employed by the commission from February 13,1973, to and including June 30,1977. On June 7,1977, while Claimant was the executive director of the commission, he entered into a contract with the commission under which he was to render services subsequent to termination of his employment. Claimant seeks to recover the sum of $3,525.00 for services rendered under that contract.

Respondent opposes the claim, relying on the foregoing statute, and arguing that the contract between Claimant and the commission is void and of no effect.

On September 18,1978, this Court entered an order denying the claim herein, on the ground that the plain wording of the statute voided the contract between Claimant and the commission.

We thereafter granted a rehearing. Oral argument was had, and additional briefs had been filed by the parties.

The Court has carefully considered those briefs, and the arguments adduced at the hearing herein. The Court remains convinced, however, that the language of the statute in question is certain and unambiguous. The Court may therefore not construe that language, but rather must apply it as enacted by the legislature. See Board of Education v. Chicago Teachers Union, 26 Ill. App. 3d 806, 326 N.E.2d 158, 161-2.

It is agreed that Claimant entered into the contract in question while he was still an employee of the State of Ilinois. Under the terms of the foregoing statute, that contract is void and of no effect, and our order of September 18, 1978, denying this claim, will not be disturbed.


text:
    (No. 77-CC-1790
    Claire C. Crawford, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 15, 1979.

   Per Curiam.

This claim arises out of an employee request for a j oh audit and reallocation to a higher j oh classification, and subsequent claim for retroactive salary commensurate with a retroactive reallocation.

The Claimant, in the case at bar, pursued her request for reallocation through the remedy provided by the Civil Service Commission where she was found to have been entitled to be reallocated.

Following the Civil Service Commission ruling, the Department of Personnel determined the Claimant to be entitled to certain back pay and arranged for payment of retroactive salary differential for the then current fiscal period and instructed her that she would have to go to the Court of Claims for the differential falling in lapsed fiscal periods.

The amount claimed is $603.50 and is from the period of time from October 1, 1976, through June 30, 1977.

The finding of the Civil Service Commission was dated August 12, 1977. The Department of Personnel determined the retroactive dates of October 1,1976, by application of their existing procedure as they then related to their Rule 1-30 which called for retroactive application back to the date of the application for reconsideration being filed with the director of the Department of Personnel.

Ill. Rev. Stat. Ch. 127, para. 145, provides as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon the effective date of a collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed.

The first part of the above-cited statute is a clear and unequivocal prohibition of any additional payments “for work already performed” for payroll periods “for which remuneration had already been made,” and presumably accepted, while the latter portion makes two exceptions to the general prohibition. The two exceptions are the retroactive payment to tradesmen who are paid in accordance with the pay scale prevailing in the geographic area of their employment, and the second exception has to do with claims for retroactive pay “based upon the effective date of a collective bargaining agreement.”

Neither of these exceptions are involved in this case. This case involves an administrative error in failing to properly classify and compensate the Claimant for the work performed.

In the past this Court has granted awards for retroactive salary adjustments in cases involving clerical errors in either the calculation of a payroll voucher or where an automatic annual pay increase was eroneously missed.

In the case of Poskus v. State of Illinois, 26 Ill.Ct.Cl. 107, this Court awarded a half-time doctor a retroactive salary adjustment, after quoting from para. 145, stating, in part:

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

In the case at bar, not only should this claim be awarded because of the State’s error in allocation but it should be granted because it is not prohibited by Ch. 127, para. 145.

It is the opinion of this Court that it was not the intention of the legislature that para. 145 of Ch. 127 would provide a means by which errors, either clerical or otherwise, made by the State would deprive any of its employees compensation that is rightfully due them.

This Court has stated many times that it is not a Court of Equity. However, the position stated in this opinion is not a position grounded in equity or good conscience but one of law. A cardinal rule of statutory construction is to ascertain and give effect to the true intent and meaning of the legislature enacting a law. Electrical Contractors Association of the City of Chicago v. Illinois Building Authority, 33 Ill. 2d 587, where an employee is erroneously allocated to a lower paying position than his duties call for, he is being erroneously paid too low a salary and has, therefore, not been previously paid for services performed. As such retroactive payments would not be payments “for which remuneration had already been made” the exclusion contained in para. 145 would not apply.

An award is hereby entered in favor of Claimant in the amount of $603.50 for back salary for the period of October 1,1976, through June 30,1977, plus the State’s contribution to the State Employees’ Retirement System and to FICA. From the aforesaid award to. Claimant, there shall be deducted amounts for Claimant’s Federal and State income tax witholding and amounts for Claimant’s contributions to the State Employees’ Retirement System and to FICA.


text:
    (No. 77-CC-1804
    Mayrose White, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 15, 1979.

   Per Curiam.

This claim arises as the result of an employee request for reallocation to a higher job classification, and subsequent retroactive reallocation. The following facts are stipulated to by the office of the Attorney General.

On August 16,1975, as the result of a survey of job duties, by the Department of Personnel, Instructor Classification was changed from Pay Grade 11 to 12. Mayrose White being on Step 5 of Pay Grade 11 received the minimum increase by going to Step 4 of Pay Grade 12. On June 1, her previous creditable service date, she was placed on Step 5. The action was incorrect in that Mayrose should have been placed on Step 5 on August 16,1975, and should have received an August creditable service date. To correct this error it is necessary to give the difference between Steps 4 and 5 Pay Grade 12 for the nine and one-half months during the Fiscal Year 1976. The August 16, 1975, creditable service date makes her eligible for the July 1, 1977, increase to Step 6 with retroactive pay to December 1, 1976.

Ill. Rev. Stat., Ch 127, para. 145 provides as follows:

“Amounts paid for appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon the effective date of a collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed.” (Emphasis added)

The first part of the above cited statute is a clear and unequivocal prohibition of any additional payments “for work already performed” for payroll periods “for which remuneration had already been made”, and presumably accepted, while the latter portion makes two exceptions to the general prohibition. The two exceptions are the retroactive payment to tradesmen who are paid in accordance with the pay scale prevailing in the geographic area of their employment, and the second exception has to do with claims for retroactive pay “based upon the effective date of a collective bargaining agreement.”

Neither of these exceptions are involved in this case. This case involves an administrative error in failing to properly classify and compensate the Claimant for the work performed.

As stated in the Attorney General’s stipulation, it is the position and opinion of the Attorney General that it was not the intent of the Legislature that Para. 145 of Ch. 127 to bar this Court from granting recoveries in cases arising out of properly processed grievances for reallocation or reclassification.

This Court has in the past granted awards for retroactive salary adjustments in cases involving clerical errors in either the calculation of a payroll voucher or where an automatic annual pay increase was erroneously missed.

In the case of Poskus v. State of Illinois, 26 Ill.Ct.Cl. 107, this Court awarded a half-time doctor a retroactive salary adjustment, after quoting from para. 145, stating in part:

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

In the case at bar, not only should this claim be awarded because of the State’s error in allocation but it should be granted because it is not prohibited by Ch. 127, para. 145.

This Court believes that the Legislature did not intend that para. 145 of Ch. 127 provide a means by which error, either clerical or otherwise, made by the State work for the benefit of the State at the expense of its employee.

This Court has stated many times that it is not a Court of Equity. However, an award in this case need not be grounded in equity or good conscience but may be grounded in law. A cardinal rule of statutory construction is to ascertain and give effect to the true intent and meaning of the Legislature enacting a law. Electrical Contractors Association of the City of Chicago v. Illinois Building Authority, 33 Ill. 2d, 587, where an employee is erroneously allocated to a lower paying position than his duties call for, he is being erroneously paid too low a salary and has, therefore, not been previously paid for services performed. As such retroactive payments would not be payments “for which remuneration had already been made” the exclusion contained in para. 145 would not apply. Claimant is hereby awarded the sum of $437.00 plus the usual employer contributions to retirement and F.I.C.A. to be distributed as follows:

To the State Employees’ Retirement System as follows:

$ 17.48 Employee’s contribution to State Employees’ Retirement System

$ 25.65 Employee’s contribution to F.I.C.A.

$ 29.28 State’s contribution to State Employees’ Retirement System

$ 25.65 State’s contribution to F.I.C.A.

To the Illinois State Treasurer to be remitted to the Internal Revenue Service:

$ 48.07 as Claimant’s Federal Income Tax withholding for current taxable year.

To the Illinois Department of Revenue, Income Tax Division:

$ 8.74 as Claimant’s Illinois Income Tax withholding for current taxable year.

To the Claimant:

$337.06 as Claimant’s net salary after all of the above contributions and withholdings have been deducted from the above total employee benefit.


text:
    (No. 77-CC-1835
    Millers Mutual Insurance Association Of Illinois, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 14, 1978.

      Al J. Pranaitis, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

The record in this cause indicated the purpose of the expenditure by the Department of Mental Health and Developmental Disabilities for which this claim was filed was for the subrogation interest on an insurance payment for damage to a car insured by the Millers Mutual Insurance Association of Illinois and that the Attorney General has submitted a stipulation by Respondent based upon information forwarded to his office by said Department, as evidenced by the departmental report attached to the stipulation by Respondent.

No part of this claim has been paid and the amount claimed is $73.92.

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause, the sum of $73.92.


text:
    (No. 77-CC-1898
    Robert P. Studnicka, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 10,1979.

   Polos, C.J.

Claimant, an inmate of the Joliet Correctional Center, asserts that in August, 1977, during the course of this transfer from the R & C Annex, a building where inmates had one-man cells, to segregation, certain of his personal property was lost, including a set of contact lenses, a portable radio, and a pair of wire frame glasses.

Respondent introduced the testimony of one Lt. Cooper, an employee of the Joliet Correctional Center, who transferred Claimant’s property. He testified that when he went to Claimant’s cell it was locked and he found an officer to open it. He said that with the assistance of two prisoners he packed Claimant’s property in six or seven large boxes. He testified, “We went through everything, Sir, desk drawers, everything that was in the cell, and got everything out of it.” Cooper said that when he delivered the property to Claimant, Claimant inquired about his contact lenses. Cooper said he had not noticed any contact lenses when he was packing Claimant’s property.

Even if we were to find it there was a bailment relationship under the circumstances here, we find that Respondent has met its burden of proving that it acted with due care with respect to Claimant’s property.

Lieutenant Cooper testified in detail as to each step he took with reference to packing and delivering Claimant’s property. There was nothing in Lt. Cooper’s testimony to indicate that he did not act with due care with respect to that property.

We therefore find that Claimant has failed to demonstrate by a preponderence of the evidence that the State did not act with due care with respect to his property.

It is therefore ordered that this claim be, and hereby is denied.


text:
    (No. 77-CC-1936
    Bernard Johnson, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 18, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record establishes that on December 13,1976, Claimant’s father sent a 19 inch television set to Claimant at the Joliet Correctional Center as a gift. The television set was delivered to the prison on December 17,1976, by United Parcel Service and one Sgt. Adams, who was on duty at the front gate, receipted for it. It was then determined that prison rules would not permit Claimant to accept that set, and it was to be returned to the sender by United Parcel Service. It was never returned, however, and disappeared from the office at the front gate of the prison.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Here the prison took actual physical possession of the television set for Claimant. The law recognizes delivery to third persons acting on behalf of a donee, and delivery of the gift was effected when Sgt. Adams signed for the television set. The State thus became the bailee of the television set, and is liable for its loss.

It was established that the television set was purchased for $134.00.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $134.00.


text:
    (No. 77-CC-1954
    James T. Thomas, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 2, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State.is liable as a bailee for the return of that property.

Claimant has established without contradiction that a Panasonic television set was delivered to the Stateville Correctional Center, after Claimant had ordered it from York Radio and T.V. of Decatur, Illinois, at a cost of $82.00, on April 26,1977, and delivered to the wrong resident through a clerical error.

Respondent has conceded liability for the loss of the set.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1 deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

The presumption of the State’s negligence is thus unrebutted.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $82.00 in full satisfaction of this claim.


author: Holderman J.

text:
    (No. 77-CC-2007
    Harold Bendicsen, Claimant, v. State of Illinois, Respondent.

      Order filed September 7,1978.

   Holderman J.

This matter comes before the Court on a claim filed by Claimant and motion of Respondent for judgment on the pleadings.

Claimant was a superintendent of Herrick House Children’s Center at the time of the incident that caused the damages of which Claimant complains.

Claimant alleges that his car was parked on the grounds of the institution, that it had been locked, that it was damaged and vandalized, and that said car had an inside hood release which was working at the time of the incident and by being forced caused most of the damage on which this claim is based.

Respondent’s motion for judgment on the pleadings is based primarily on the fact that Claimant was either negligent in failing to maintain adequate control over the residents which would constitute negligence on the part of Claimant and that if he was negligent, he cannot recover from his own negligent action.

It is also the State’s contention that it was the responsibility of Claimant to prevent the very action of which he now seeks to recover. If an award were granted, it would have to be based upon the fact that the State was negligent in failing to prevent the act in question and would be in fact compensating him for his own failure to perform the duties for which he was hired.

Exhibits, in the form of letters, attached to the complaint state the damage was done by one or more residents of the Center although the identity of the guilty party or parties has never been determined.

An award can be granted in cases such as the present one only when there is negligence on the part of the State and no contributory negligence on the part of Claimant.

The State is only liable where there is some negligence on its part and, as stated above, the State could only have been negligent in the present case by failing to properly supervise the inmate or inmates who caused the damage. To make a finding to that effect would put the State in a position of being an insurer which it is not.

An award cannot be made to an individual working for the State when it is the responsibility of that individual to prevent incidents such as the one on which this claim is based. To hold otherwise would amount to an award based upon contributory negligence of the Claimant.

Motion for judgment on the pleadings is hereby granted and said cause is dismissed.


text:
    (No. 77-CC-2048
    Albert Winfrey, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 9, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The claim arises out of two separate incidents. Claimant first alleges the loss of laundry, which was given over to the prison laundry and not returned. A second loss was a loss of personal property which allegedly disappeared from the vicinity of the lieutenant’s desk on the first floor of the segregation unit. Claimant testified that his property was brought with him to the segregation unit, but he was taken up to the cell and the property left on the lower level at the lieutenant’s desk for inspection to determine if it contained any contraband. Before the property could be moved up to Claimant’s cell, certain items disappeared. Claimant said inmates go through property left unattended, and it disappears.

The Court finds that in both instances the State of Illinois became a bailee of Claimant’s property, and owed Claimant a duty to use reasonable care in ensuring its return to him.

Claimant testified that the property lost by the prison laundry had a value of $16.00 and that the property lost by the segregation desk had a value of $42.50.

The State of Illinois presented no evidence to rebut the presumption of negligence which arises when property, in the hands of a bailee, is not returned to the bailor.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $58.50.


author: Polos, J.C.

text:
    (No. 77-CC-2105
    Victor Hubbard, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 2, 1978.

   Polos, J.C.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has established that on December 24, 1976, five eight track tapes were delivered to the State-ville Correctional Center, after Claimant had ordered them from Music Wholesalers of Des Moines, Iowa, at a cost of $32.50. The institution took possession of the tapes, but they were never delivered to Claimant.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

The presumption of the State’s negligence is thus unrebutted.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $32.50 in full satisfaction of this claim.


text:
    (No. 77-CC-2106
    Steven Henson, Claimant, v. State of Illinois, Respondent.

      Opinion filed October 23, 1978.

   Per Curiam.

This case arises as a result of a three day disciplinary suspension of the Claimant, a prison guard. The suspension was revoked as the result of a fourth level grievance appeal to the Director of Personnel. The suspension occurred on September 20,21 and 22,1976, but by the time of the fourth level grievance determination the Fiscal Year 1977 appropriation had lapsed. Following the Director’s reversal of the suspension no appeal was taken. The Claimant then applied directly to this Court for relief. Although appropriations remaining available in the personal services line item when coupled with other claims of a similar nature made for the same fiscal period there were inadequate funds remaining in the personal services line item. The supplemental departmental report of March 24,1978, clearly points out this deficiency of line item money when it refers to the cases of Homer Ward and Bobby Miller, involving the same line item appropriation. However, the supplemental departmental report also establishes that pursuant to the provisions of Ill. Rev. Stat., Ch. 127, para. 149.2, that there was available from the commodities line item of the same general fund appropriation the amount of $83,039.24 which could have been transferred for utilization in the payment of these salaries had the necessity become obvious prior to the lapse of the fund. Chapter 127, para. 149.2 states in pertinent part as follows:

“Transfers among line item appropriations from the same treasury fund for the objects specified in this Section when the balance remaining in one or more such line item appropriations is insufficient for the purpose for which the appropriation was made. No transfers may be made from one agency to another agency, nor may transfers be made from one institution of higher education to another institution of higher education. Transfers may be made only among the objects of expenditure enumerated in this section, except that no funds maybe transferred from any appropriation for personal services. The sum of such transfers for an agency in the fiscal year shall not exceed two percent of the aggregate amount appropriated to it within the same treasury fund for the following objects: personal services, extra help, student and inmate compensation, State contributions to retirement systems, State contributions to Social Security, contractual services, travel, commodities, printing, equipment; electronic data processing, operation of automotive equipment, telecommunications services, library books, Federal matching grants for student loans, refunds, Workmen’s Compensation, occupational disease, and Tort claims, and, in appropriation to institutions of higher education, awards and grants.” etc., etc.

As can be seen from the above quotation the legislature has approved transfers from the commodity line item to personal services.

In view of the provisions contained in Ill. Rev. Stat. Ch. 127, para. 145, prohibiting retroactive salaries this Court feels it to be appropriate to comment as follows:

Chapter 127, para. 145, provides in part as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant, to the application of the prevailing rate principle or based upon the effective date of a collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed.”

This Court recognizes the validity of the above paragraph but finds that it does not restrict the entry of an award in this case. It is clear from the examination of the facts that a payment in this case would not “constitute in fact an additional payment for work already performed and for which remuneration had already been made.” In their joint stipulation the parties have agreed to the above finding and this Court, as above stated, concurs in that agreement. There was never any remuneration for the period of time of the suspension and, therefore, the prohibition contained in paragraph 145 is inapplicable.

This Court, therefore, awards the Claimant the amount of $136.65 plus appropriate employer’s retirement contribution and F.I.C.A. contributions.


text:
    (No. 77-CC-2108
    David Lawrence, Claimant, v. State of Illinois, Respondent.

      Order filed January 10,1979.

   Per Curiam.

Claimant, an inmate of an Illinois State Penitentiary at Pontiac, Illinois, has brought this action to recover the value of certain items of his personal property which he alleges were legally confiscated during a shakedown on April 27, 1977. Claimant alleges that authorities at the Pontiac Correctional Center illegally confiscated two stereo speakers and a pair of tennis shoes. Claimant values the speakers at $60.00, and the tennis shoes at $35.00. Claimant also seeks $95.00 in damages for replacement of a damaged phonograph.

The Court has carefully considered the transcript of evidence taken before a Commissioner of this Court. The evidence establishes that the speakers in question were taken from a fellow resident, and not from Claimant himself. It was a prison rule that personal items may not be loaned to fellow prisoners, or they become subject to confiscation as contraband. The prisoner to whom Claimant loaned the speakers had no permit for them, and they were properly confiscated.

The tennis shoes taken from Claimant’s cell were not contraband, and should have been returned to him after the shakedown.

The phonograph in question is in the possession of the Claimant, but he seeks damages for its repair. The record is unclear as to who damaged the phonograph, but it does appear that it was not damaged by Claimant, and that the damage occurred during the shakedown.

In view of the foregoing, the Court finds that Claimant is entitled to reimbursement for his loss of his tennis shoes. The Court finds he is not entitled to reimbursement for damage to his phonograph, or for confiscation of his speakers.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $35.00.


text:
    (No. 77-CC-2126
    Fisher Scientific Co., Claimant, v. State of Illinois, Respondent.

      Order filed November 8, 1978.

   Per Curiam.

This matter comes before the Court on a motion to dismiss filed by Respondent.

Respondent’s motion states as follows:

“1. That the claim herein seeks the recovery of $2,025.00 for the delivery of one electrometer to the Illinois Department of Law Enforcement.
2. That Claimant filed a second claim seeking $2,025.00 for the delivery of one electrometer to the Respondent.
3. That Claimant filed a third claim for $8,100.00, for the delivery of four electrometers. (78 CC 718)
4. That Claimant, in fact, delivered four electrometers to Respondent as alleged in the third complaint. (78 CC 718)
5. That the claim herein duplicates a portion of claim no. 78 CC 718.
6. That Ill. Rev. Stat., Ch. 37, Sec. 26, (1977) states that there shall be but one satisfaction of any cause of action.
7. That Ill. Rev. Stat., Ch. 110, Sec. 48(c), (1977) states that another action pending between the same parties for the same cause is a ground for dismissal.”

Motion for dismissal in this cause is hereby granted and said cause dismissed. All the matters contained herein can be disposed of in Case No. 78 CC 718.


text:
    (No. 77-CC-2127
    Alfred Bracey, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 1, 1979.

   Polos, C.J.

Claimant, formerly an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record herein establishes by the preponderance of the evidence that in June, 1975, while confined at Stateville Correctional Center, Claimant purchased from Monroe Merchandisers, Inc., Joliet, Illinois, a Zenith television set for the sum of $95.37. Further, on April 22,1976, Claimant purchased from Monroe Merchandisers, Inc., Joliet, Illinois, a Panasonic AM-FM portable radio and eight track tape player for $129.95.

On or about January 27, 1977, prison authorities took possession of Claimant’s television set and it has never been returned to him.

On January 23,1978, prison authorities took possession of Claimant’s Panasonic radio and it has never been returned to him.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al, 57 Ill. App. 2d 90, 207 NE2d 84.

In Chesterfield, The Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d 172, at 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant’s prima facie case therefore stands unrebutted.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $225.32.