text:
    (No. 4812
    Edith Burris, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 18, 1963.
    Sorling, Catron and Hardin, Attorneys for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Edith Burris, age 59 years, brings this action to recover $10,000.00 in damages for injuries to her person, which she sustained on March 2, 1956, in a fall in the State Capitol Building, Springfield, Illinois, while she was attending a public function celebrating the 75th Anniversary of the American Red Cross. The function was under the sponsorship of the American Red Cross, and claimant at said time was a ‘1 Gray Lady. ’ ’

A platform was erected for the purpose of seating-certain State Dignitaries, including the Governor. It was also built for the purpose of placing the large birthday cake thereon, which was to be officially cut by the Governor of the State of Illinois at said time. The platform was erected in the rotunda of the State Capitol Building, with the permission of the State of Illinois, by a contractor, who erected said platform and steps leading thereto for the American Red Cross. It does not appear that this was done under the supervision and direction of an agent for the Department of Grounds and Buildings. At the time James Walsh was superintendent for said department.

The accident occurred at approximately 1:30 P.M. after the ceremonies had taken place. Claimant, who had been sitting on the platform, and, having descended the three steps, walked around said platform in a group of people on her way to receive refreshments being served, testified that she struck her ankle against the corner of the steps, which caused her to fall.

Claimant was assisted to the first aid department, which is maintained by the Department of Public Health, and was under the supervision of a registered nurse by the name of Norma Chambers. The nurse noted that she had an abrasion on the lower part of her right leg, and that she experienced some discomfort in her right ankle, but at said time she made no complaints as to other injuries, which she is now contending she received by running into said step.

She was advised by the nurse to consult with her own physician, and, in response thereto, stated, “that she didn’t want to go to see Dr. Richard Allyn, because he had been treating her for a heart ailment, and didn’t want her to be out at the time. ’ ’ The nurse in attendance did not notice any swelling or bleeding in or about her mouth or lips, nor did she notice or observe any other injuries other than the abrasion to her right leg, and the subjective complaint of discomfort in her right ankle.

Claimant did not call or produce any medical testimony at the trial. She testified as to her injuries, which are as follows: Injury to her right instep, right ankle, mouth and jaw, broken dentures, and broken eye glasses, which fell to the floor and were stepped on by someone in attendance at the ceremony.

Exhibits Nos. 1 to 8, inc., were offered, and certain objections were made thereto by the Attorney General representing respondent for the reason that there was insufficient testimony and remoteness of dates of the bills, so that it could be determined that the bills were the outgrowth of, and had any causal connection with the injuries complained of.

We find that there is a great discrepancy in the dates when the services were performed in relation to the date of the injury, and there is an absence of any causal connection between the injuries and the exhibits.

In the Commissioner’s Report, it is noted, which is borne out by the evidence, being solely her testimony, that she failed to go to see her own doctor whom she had been consulting in regard to her heart ailment. She did consult a Dr. F. N. Brill the next day for treatment, and some four months later she obtained eye glasses; and then, almost eight months later, she had repairs to her dentures, and eleven months later she was hospitalized. A cancelled check in the amount of $150.00 was offered in evidence, which was dated some year and three months after the accident.

No other witnesses testified on behalf of claimant. A unique piece of evidence was offered, namely, answers to certain interrogatories propounded to a Mr. Robert H. Schuelke, who at said time resided in Kansas City, Kansas, and who apparently was at the time of the accident in some way connected with the American Red Cross, and apparently was responsible for being granted permission to have the platform and steps in question erected in the rotunda.

The answers to the interrogatories cannot be considered for the reason that notices were not served on the Attorney General in accordance with the statute for the taking of evidentiary depositions, either oral or written interrogatories, namely Chap. 110, Sec. 101.19-7. Such evidence produced, which was objected to, would not give the Attorney General an opportunity of cross-examination.

Claimant is contending that she was an invitee of respondent, that the steps she struck were negligently constructed, that they were constructed by respondent’s agent, and that, therefore, respondent is liable in damages for the alleged injuries, which she testified to.

As to the question of whether or not she was an invitee of respondent, she has not maintained the burden of proving this. We find that she has failed to maintain this burden of proof, and that she was a mere licensee, the distinction being that one, who is a mere visitor on the premises of. another, is a licensee, while one, who is an invitee, is brought upon the premises of another where business is being conducted, and is invited upon the premises for the purpose of conducting business, there being a common interest or mutual advantage to be obtained from the visit. In the case of the licensee, which we believe was the situation in this case, her visit in the State Capitol was for her mere pleasure or benefit.

The fact that the Department of Public Works and Buildings might have permitted the American Red Cross to have erected in the rotunda a platform and steps leading thereto, and permitted the American Red Cross to have their 75th Anniversary observance there is a mere passive acquiescence by the State officials in the use of its property, which would not make in effect, legal or otherwise, claimant an invitee.

In the case of an invitee proof of ordinary negligence is necessary. In the case of a licensee the burden of proof is upon claimant to prove respondent guilty of wilful and wanton misconduct.

From the only competent evidence produced at the trial, we cannot by any stretch of the imagination conceive of how there could be any responsibility on respondent for the injuries, which claimant is seeking to recover.

In the first place, it appears, and this is uncontradicted, that claimant was advised by her treating physician not to go out into the public because of her heart condition. It could have been that this pre-existing condition caused her to fall. At least there was no testimony offered by anyone for claimant in rebuttal to the testimony of the nurse in this regard.

Secondly, she was aware of the location of the platform, the steps leading to the platform, and there was no evidence that this was located in an area, which was not well lighted. In fact, it is common knowledge that in the daytime the rotunda is light, and there is no evidence of any flaw in the floor or anything surrounding the platform, which would cause her to fall.

Thirdly, this was not a function of respondent, but of an organization of which claimant was a part of, in that she was a “Gray Lady.” In fact, we cannot see wherein claimant has established her case by a preponderance or greater weight of the evidence that she was free from negligence, and that respondent was guilty of negligence, which was the proximate cause of the accident resulting in her injuries.

The State of Illinois is not an insurer of everyone entering the State Capitol.

Therefore, an award to claimant must be and is hereby denied.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4917
    Arthur H. Kroll, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 18, 1963.

    Costigan, Wollrab and Yoder, Attorneys for Claimant.
    William G. Clark, Attorney General; William South, Assistant Attorney General, for Respondent.
   Fearer, J.

This is a claim for property damage in the sum of $1,500.00 as a result of an accident, which claimant had on August 17, 1959, at or about the hour of 9:20 P.M.

Claimant at said time was driving his 1959 Nash Rambler in a northerly direction on U. S. Route No. 51, approximately ten miles north of Normal, McLean County, Illinois, north of a “T” intersection on said highway and the Lake Bloomington Road, which, at said time, was undergoing repairs and reconstruction under contract entered into with the Division of Highways. This stretch of road was under the jurisdiction of the State of Illinois.

Claimant, a resident of Mesa, Arizona at said time, was en route from his home to the State of Wisconsin.

Within the vicinity where the accident occurred, the pavement narrowed from a two lane 24 foot pavement to an 18 foot pavement. The evening was clear, the highway was dry, even though it had rained earlier in the day, and visibility was good.

Claimant ran off of the highway into a depressed area on the shoulder described as a hole, but the exact point where he ran off is in dispute. The tires on the righthand side of his car blew out, and his car in coming back onto the highway rolled over several times, and came to rest on the west side of the road up against a bank. There were extensive damages to his automobile, and his claim consists of costs of repair, traveling expenses, meals, and loss of earnings.

The claim is predicated upon failure of respondent to properly post and warn the traveling public of the hole in the shoulder and the narrowing of the pavement. It is contended that respondent had either actual or constructive notice of this condition, and that its negligence in failing to properly warn the public caused claimant’s automobile to run off of the highway, which was the proximate cause of the accident resulting in the damages alleged.

Claimant called as one of his witnesses, Merle Duane Holliger, who was a State Trooper riding in the area in question on the date of the accident.

The accident report was marked as claimant’s exhibit No. 1, and offered in evidence. However, accident reports are not admissible in evidence in the trial of cases of this kind, and cannot be considered as evidence. The accident report, however, was used by this witness to refresh his recollection, which, of course, is perfectly proper upon laying the proper foundation of exhausting his memory as to the facts determined by his investigation.

Briefly, he testified that the road was under reconstruction; that he found that claimant had slipped off of the pavement first, and then later ran into a hole; that he determined that both tires on the righthand side had blown out; that the car came back onto the highway, crossed the road, and came to rest on the west bank headed south. He described the hole or depressed area as being one and one-half to two feet in length, and about one foot in depth. He testified that there were road improvement signs, a sign advising the traveling public that the pavement narrowed, and that there were signs advising of the resurfacing of the highway. He testified that there were barricades all along the construction area, some having flashers, and some without flashers, and that there were wooden horses painted yellow and black. He further testified that the pavement was dry, the skies were clear, and there were no obstructions to visibility. He determined that claimant had traveled approximately sixty feet on the narrow pavement before his car left the pavement, and that his car came to rest approximately one hundred and fifty feet from the hole in the shoulder. He stated the flashers were working on the barricades, and that there were many such flashers within the entire area.

Claimant then called as his next witness, William R. Woosley, who was a farmer within the area where the accident occurred, and who had occasion to drive this road approximately twice a day.

He testified that there was a hole on the shoulder just beyond the barricade, and that the hole was not too wide, but was maybe three feet long and a foot deep. He further testified that there was a sign advising that the roadway narrowed, and that there were barricades with flashers on them.

There were no other witnesses called, other than claimant himself, who testified that he did not see any signs or barricades, and that the accident happened so quickly that he didn’t see the hole. He made no complaint to the State Trooper about lack of signs or barricades advising him of the condition of the roadway. He did, however, testify that he knew the road was under construction, but that he was only driving between 45 and 50 m.p.h. His testimony concluded with his bills and claim for damages.

Respondent called Ferdinand Mariani, who was a civil engineer for the Division of Highways, and was the resident engineer on this project. He testified as to the type of project, the signs advising the traveling public of the narrowing of the pavement, and the barricades with flashers in existence at the time of the accident. He further testified that there were four construction signs and pavement narrow signs, and that one-half of the barricades were reflectorized.

The only other witness called by the State was Leo Baton, the contractor, who further verified all of the signs, barricades and flashers. He further testified that he did not see any hole in the shoulder, which would cause a car to go out of control. We have held many times, of course, that the State of Illinois is not an insurer of all persons who travel upon its highways. We have also held that the State of Illinois is not obligated to keep its shoulders in the same condition as it would the paved portion of the road.

Claimant is the only witness, who did not see the warning signs as to the pavement narrowing or as to the construction work.

From the evidence, we find that claimant had sufficient notice that there was construction work ahead, and that the pavement narrowed, and that he should have had his automobile under proper control so that it would not run off the road onto the shoulder.

Furthermore, it does not appear from the evidence that it was the hole in the shoulder, which was the proximate cause of the accident, causing his tires to blow out, but it could just as well have been his failure to heed the warning of the narrowing of the pavement, the running off onto the shoulder before he got to the hole, and attempting to pull back onto the road too suddenly without keeping his car under control, which caused his tires to blow out, and his car to overturn and travel another 150 feet.

We find that claimant has not maintained the burden of proving first that he was free from contributory negligence, and, secondly, that it was the negligence of the State in the maintenance of the highway and failure to give sufficient warning, which was the proximate cause of the accident resulting in the damages suffered by claimant.

It is, therefore, the order of this Court that claimant’s claim is hereby denied.


text:
    (No. 4920
    Lucius Steward Flournoy, a minor, by Lula Mae Flournoy, his Mother and next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 18, 1963.

    Warren F. and Robert L. Landsman, Attorneys for Claimant.
    William G. Clark, Attorney General; Sheldon K. Rachman, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Lucius Steward Flournoy, a minor, by Lula Mae Flournoy, his Mother and next friend, brings this action against the State of Illinois as a result of an accident, which occurred on April 25, 1960.

Claimant, Lucius Steward Flournoy, at said time was an inmate of the Illinois State Training School for Boys at St. Charles, Illinois. He was fifteen years of age, and for the first time was assigned to work in the cannery building along with three other boys. It appears that this was the first time that he had ever been in the cannery building. His immediate supervisor, or foreman, was a Mr. William Dawson, who directed the boys to push two carts on the elevator to be taken to the second floor.

Claimant is relying upon the fact that he was a minor, fifteen years of age, and taking into consideration his age, intelligence, and experience for a boy fifteen years of age, he did not have sufficient knowledge without ample instruction to close the elevator doors, which he claims he did at the insistence of Mr. Dawson, without any previous knowledge and instructions. Futhermore, that the device or strap, which was ordinarily used in the closing of the doors, which were divided in the middle, and were of heavy gage steel, was missing, and that the only place that the boy could reach to close the doors was on the outside where he could take hold of a flange and pull the top door down, which would cause the bottom door to come up, so that the elevator could be moved.

Several photographs were introduced into evidence showing the outside and inside, and also showing a strap on the upper door on the inside, which was put on after the accident.

There is further evidence that the elevator doors had been equipped with a strap, which was ordinarily used in the closing of the doors.

There is evidence that there was a flange or angle inside and on the bottom of the upper door, approximately one inch wide and one and one-half inches in depth, which could have and should have been used by claimant in the closing of the doors.

Claimant, in closing the doors by reaching outside and pulling down, sustained an injury to his middle finger on his right hand, which was repaired by surgery, resulting in scarring, not only on his finger but keloid formations on the dorsal surface of the third finger, right hand, as well as on the inner right forearm where skin was taken for the purpose of making the flap over the finger.

First aid was given in the infirmary located on the grounds, and claimant was later taken to the Illinois Research and Educational Hospital, Chicago, Illinois, where he was hospitalized from April 25, 1960 to May 21, 1960, and surgery was performed.

He was later returned to the State Training School, where he was assigned and given light duties until his finger became healed and less tender.

Claimant is seeking damages for the loss of part of the right middle finger, right hand; deformity of the middle finger, right hand; keloid scarring and discoloration on the dorsal side of the distal phalanx of his ring finger, right hand; and, keloid scarring and discoloration of the inner aspect of the right forearm, the sight of the graft.

This Court has held in numerous cases that an inmate of a training school can maintain an action in this Court.

In passing upon this claim we are taking into consideration the age, intelligence and experience of a boy of the age of claimant; the duties to which he was assigned, and the question of whether or not he was properly instructed in the closing of the elevator doors, which is a part of the operation of the elevator; and, also, the lack of the device or strap, which had been formerly attached to the inside of the door, and used in the closing of the elevator doors.

The burden of proving freedom from contributory negligence is upon claimant. Again we are taking into consideration this boy’s age, intelligence and experience; the negligence of respondent’s agent, Mr. Dawson, who was in charge of claimant at the time in directing the work, the elevator, and the device used in the closing of the elevator doors; and, as to whether or not this boy was sufficiently instructed in the closing of the doors; and, whether or not this door should have been equipped with a strap to be used in the closing of the doors, which would have been readily apparent to anyone even a boy of his age, intelligence and experience.

There is a dispute in the evidence as to whether or not claimant had been sufficiently instructed in the closing of the doors. Also, there is some dispute as to the sufficiency of the angle iron on the inside of the door, the heighth of it; and, whether the only means that claimant had in the closing of the doors was to reach outside, grab onto the angle iron, and pull down on the door, which would cause the bottom door to come up, the top door to come down, and be properly closed.

Respondent is relying upon certain conversations having taken place between claimant and his attorney, wherein he was asked, 44Whether or not he was instructed in the closing of the doors”, and his answer thereto was, 44that he was.”

Respondent makes no effort to go into any detail as to what instructions were given to this boy, or any other boy, in the operation of this elevator.

It appears from the record that it was difficult at first to put the top door in motion, but, once it was placed in motion, the action was rapid, which caused the doors to come together before claimant could remove his arm sufficiently to keep from having his finger severed.

It appears that the only person, who would be in a better position to know the action of the door in pulling it down, and the rapidity in which the two pieces of steel would come together, would be Mr, Dawson, and Mr. Dawson must have realized in working with claimant that he was an immature, inexperienced and inadequate boy for a boy of his age. We only make this last statement from the evidence introduced as to the boy’s schooling. The only thing that Mr. Dawson said to him was, “Look out”, and this statement was made too late to avoid the accident.

We undoubtedly would look at this claim differently if we were dealing with an adult as distinguished from an immature boy of fifteen years of age, or, if we had a more intelligent boy than we are dealing with here.

We are also impressed with the fact that originally this elevator had a strap on it, which was used in the closing of the doors, and after the accident the strap was returned to be used for the closing of the elevator doors.

There is nothing to be gained by having this boy, or any other boy, close the elevator doors. We believe Mr. Dawson should have performed this act, particularly in view of the fact that, had he looked, he could have seen the boy put his arm outside, and he knew that a strap had been provided previously, but was not on the elevator door at the time. Therefore, the least he could have done would have been, if he asked this boy to close the elevator door, to instruct him not to place his hand outside, but if at all possible to pull down on the inside, as Mr. Dawson must have known that, once the two pieces of steel were placed into motion, the balance of the action would be rapid and dangerous.

After considering all of the medical testimony, viewing the exhibits, including the X-Rays, and counsel for claimant’s reference to the Workmen’s Compensation Act, irrespective of the fact that it is improper for anyone to place a specific percentage loss on the injury, we believe that a fair award would be $1,000.00.

An award is, therefore, made to claimant, Lucius Steward Flournoy, in the amount of $1,-000.00.


text:
    (No. 5030
    Armour Research Foundation of Illinois Institute of Technology, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 18, 1963.

    Albert Siegel, Attorney for Claimant.
    William G. Clark, Attorney General, for Respondent.
   Fearer, J.

Tins claim arises by reason of the lapse of an appropriation prior to the payment of an amount due claimant, Armour Research Foundation of Illinois Institute of Technology, by the State of Illinois. At the time the appropriation lapsed, there were sufficient unexpended funds available to cover the amount of the claim.

The record consists of the complaint, stipulation, motion for leave to waive the filing of briefs, together with attached consent of the Attorney General, and order of the Court directing that neither claimant nor respondent be required to file a brief.

There is attached to the complaint a bill of particulars, in which the claim is set forth in detail.

A stipulation has been entered into between the attorney for claimant and the Attorney General’s office for respondent, wherein it is stipulated that the complaint correctly sets forth services and charges therefor, and all pertinent matters, and that claimant is justly entitled to the amount therein claimed from the State of Illinois, after allowing all just credits.

The basis for the claim is in accordance with the terms of requisition No. MTS 58-34, wherein respondent sought the scientific services and materials to be supplied by claimant, as needed and when available, for technical assistance in design or modification of the Cartographotron, revision and audit of schematic diagrams of the Cartographotron as assembled and drawn by the Chicago Area Transportation Study, assistance and preparation of a complete preventative maintenance schedule for the Cartographotron, and assistance in the assembly and completion of an operation manual for the Cartographotron.

The amount remaining due, and for which the claim is filed, is $259.63.

The claim of Armour Research Foundation of Illinois Institute of Technology is, therefore, allowed in the sum of $259.63.


text:
    (No. 5060
    Commonwealth Edison Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 18, 1963.

    Joseph C. Sibley, Jr., and Emmet T. Gallagher, Attorneys for Claimant.
    William G. Clark, Attorney General, for Respondent.
   Fearer, J.

This claim arises by reason of the lapse of an appropriation prior to the payment of an amount due to claimant, Commonwealth Edison Company, An Illinois Corporation, by the State of Illinois. At the time the appropriation lapsed, there were sufficient unexpended funds available to cover the amount of the claim.

There is no dispute that the amount is due and owing, and a stipulation has been entered into between the attorneys for the Commonwealth Edison Company and the Attorney General’s office, wherein it was stipulated that the State of Illinois was indebted to claimant in the amount of $389.56.

The record consists of the complaint, Departmental Report, which verifies the figure stipulated to, stipulation, motion of claimant for leave to waive the filing of brief and oral argument, and order of the Chief Justice granting the motion of claimant for leave to waive the filing of brief.

The supplying of electricity to respondent, Department of Public Works and Buildings, Division of Highways, District 10, at said District’s special instance and request, during the period from March 1, 1961 through Juris 30, 1961, ine., for the operation of diverse traffic signals located in various suburbs immediately north of Chicago, Illinois, is the basis for this claim. Attached to the complaint is a bill of particulars wherein the various rates and charges are set forth, and is the basis for this claim. After allowing all just credits and set-offs, there is due claimant the sum of $389.56.

The claim of Commonwealth Edison Company, An Illinois Corporation, is, therefore, allowed in the sum of $389.56.


author: Perlin, C. J.

text:
    (No. 4848
    Fred J. Price, as Administrator of the Estate of Catherine Price, Deceased, and Fred J. Price, an individual, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.

    James N. Keefe and Howard L. Snowden, Attorneys for Claimants.

      William G. Clark, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Fred J. Price, filed this action in two counts, one as Administrator of the Estate of Catherine Price, Deceased, and the second in his own behalf. Each count claimed damages of $7,500.00 as a result of an accident, which occurred when claimant’s car was struck by a squad car driven by an Illinois State Highway trooper.

The evidence shows that on March 17, 1958, at approximately 12:50 A.M., a 1957 Ford, a squad car, owned by the State of Illinois and being driven by State Trooper Alfred D. Hendricks, smashed into the rear of a car being driven by claimant, Fred J. Price. Officer Hendricks was accompanied by State Trooper Robert Shank. Claimant’s wife, Catherine, a passenger in claimant’s 1939 Chevrolet coupe, was killed, and plaintiff was injured.

The accident occurred on U.S. Highway No. 24, approximately two miles west of Fowler, Adams County, Illinois. This highway runs in an easterly and westerly direction, and the squad car was proceeding east at the time of the collision.

Claimant, Fred J. Price, had entered U.S. Highway No. 24 from the south just before the collision. He had been traveling north on a gravel road, which intersects U.S. Highway No. 24, and had turned right (or easterly) onto said highway when he was struck.

A stop sign is located at the intersection of U.S. Highway No. 24 and the gravel road in question for vehieles entering the highway. There is a dispute as to whether or not Mr. Price stopped fully at this sign.

Both Hendricks and Shank testified that at the time of the collision they had been chasing a suspected speeder; that they had reached speeds up to 105 miles per hour; that they had approached this intersection at 90 miles per hour without any warning of their approach; and, that they did not use their siren, flashing red light, or horn. Trooper Shank testified that they had pursued the speeding automobile for about 5 or 6 miles. Trooper Hendricks testified that they were acting pursuant to department instructions to get an accurate clocking of the speeding vehicle before using the siren or the red light.

The troopers stated that they had seen the Price car enter the highway; that he did not stop at the stop sign, and they did not then warn of their approach. Officer Charles Lenz, who investigated the accident, testified that, when he spoke to claimant after the accident, Mr. Price told him he did not fully stop at the stop sign, but had shifted into second gear.

Claimant Price testified that he fully stopped at the stop sign; that he saw a car coming about a half-mile to the west; that he then shifted into second gear and entered the highway, turning right. He said he was struck by the police car before he had moved 100 feet along the highway.

Officer Lenz further indicated that, in police training, troopers are taught that, when clocking a speeder, it is more important to afford an approaching vehicle due warning by means of lights and warning sirens than to determine the speed of another car.

See. 212(b) of Chap. 95%, 1957 Ill. Rev. Stats., in effect at the time of this accident, provides that, when an authorized emergency vehicle is operated in the immediate pursuit of an actual or suspected violator of the law, the driver of such vehicle shall sound a siren, whistle or bell when necessary to warn pedestrians and other drivers of its approach.

It is clear from the foregoing that the agents of respondent were guilty of negligence, and that such negligence was the proximate cause of this accident.

Whether or not claimant, Fred Price, did in fact come to a complete stop appears to be of minor importance, since his action does not appear to be a contributing factor in causing the accident. The evidence is clear that claimant had already completed his turn, and had driven about 100 feet when respondent’s agents crashed into the rear of his car.

The question next arises as to the amount of recovery, which should be allowed claimant. Prior to the filing of this claim against the State of Illinois, Fred J. Price, as Administrator of the Estate of Catherine Price, Deceased, gave a covenant not to sue Alfred Hendricks and Robert Shank for the consideration of $3,000.00. Fred J. Price, as an individual, gave a covenant not to sue Alfred Hendricks and Robert Shank for the consideration of $1,000.00. These amounts must be considered in the rendering of any award, Martin vs. State of Illinois, 22 C.C.R. 179.

Since damages for wrongful death are limited to pecuniary loss, it is necessary to examine the claim of the Estate of Catherine Price for $7,500.00. Mrs. Price left eight grown children surviving. According to the testimony, she did free baby-sitting, sewing, canning, cooking and cleaning regularly for six of them, in addition to tending to her own housework.

According to the mortality tables admitted into evidence, the life expectancy of a female, aged 65, was 15.5 years. It is the opinion of this Court that the Estate of Catherine Price be awarded, in addition to the $3,000.00 it has already received, the sum of $2,000.00.

Claimant, Fred J. Price, testified that he had not worked from the time of the accident to the time of the hearing, a period of 2% years; that he could no longer carry with his left hand, or lift anything; that he was regularly employed as a farm hand, earning $125.00 per month, plus being furnished with housing before the accident; that his medical bills amounted to $259.20. He said that after the accident he lived first with a son, then a daughter, and did not return to his home. Other than claimant’s own testimony and the bill of particulars, there was no corroborating medical report, either written or oral, as to the extent or permanency of the injuries allegedly suffered by Fred J. Price.

It is the opinion of this Court that Fred J. Price be awarded, in addition to the $1,000.00 he has already received, the sum of $1,500.00.


text:
    (No. 4850
    Ernest W. Mammen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.
    Costigan, Wollrab and Yoder, Attorneys for Claimant.
    William G. Clark, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant seeks recovery of $7,500.00 for personal injuries and property damage allegedly incurred as a result of an accident on December 26, 1956, when the car he was driving crashed into a barricade erected by respondent across old Route No. 66.

That respondent’s negligence caused the accident was decided by this Court in the companion case of Sue Mammen vs. State of Illinois, No. 4786, wherein claimant’s wife was awarded $5,000.00 for injuries suffered in the same accident. In that case the Court held as follows:

“Respondent was negligent in failing to maintain adequate signs warning of this particular danger, which obviously was known by it to exist long prior to the happening of this occurrence.
“We further find that claimant and her husband were in the exercise of ordinary care for their own safety at the time of this occurrence, and that the negligence of respondent proximately caused claimant’s injuries.”

Therefore, the only question presented in the instant case is the extent of damages, if any, sustained by claimant as a result of the accident.

Claimant testified that he was driving a 1945 or 1946 Mercury in the accident, which occurred in December, 1956. He sold the car for junk for about $75.00, although he does not remember the exact amount. He estimated that the fair cash market value of the car was about $300.00, but had not checked the value in the Blue Book. Claimant presented no corroborating evidence as to his estimate of the value of his car.

According to claimant, he suffered physical injury when his car struck the barrier, and he was thrown against the windshield and the steering wheel, striking his chest. Since that time, he claims he has had pain in his chest, and can work or be active for only a short time. He first noticed a shortness of breath or pains when he was driving a few days after the accident.

Claimant further testified he was unable to continue working in his real estate business since the time of the accident, and had no income since that time. He said that he sold farm property, and sometimes he found it necessary to walk several miles on one project, which he was now unable to do. Since the accident, however, one or two people have asked him to handle the sale of farms, and he has also accepted four or five listings, of property.

Claimant started in the real estate business when he was about 65 years of age. He was 77 years old at the time of the hearing on November 20, 1959. He said that he “probably” had an annual income of $2,000.00 to $2,500.00. No income tax returns or business records were offered to substantiate this claim.

Claimant’s son, Dr. William Mammen, testified that he had examined his father on the day of the accident. At that time claimant was complaining of pain in his chest, which he said was incurred when he struck the steering-wheel. There were bruises on his chest, but apparently no fractures. Claimant complained of soreness of the chest and pain when he moved. The doctor examined his father again about a week after the accident, determined that the pain was of an anginal origin, and prescribed nitro-glycerine tablets.

According to Dr. Mammen, there is a causal relation between contusion to the chest and angina. In his opinion, the blow that his father received in the accident was the cause of the angina, since he had no complaints before the accident. Dr. Mammen further testified that the type of anginal pain suffered by his father does restrict activity; that claimant cannot be active; that he has seen claimant suffer from shortness of breath and pain from over-exertion.

It is the opinion of this Court that claimant has. failed affirmatively to prove that he suffered any loss on the sale of his old automobile for $75.00. He submitted no evidence other than his opinion as to its market value, and we are inclined to consider his appraisal excessive.

Despite claimant’s alleged physical condition, he was still relatively active at the time of the hearing, and was able to drive and partake in limited business activity. From the facts before this Court, we believe the injuries received by claimant in this accident to have been fortunately of a minimal character.

The Court hereby awards claimant the sum of $300.00.


text:
    (No. 4870
    John Sisco, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.

    Lloyd H. Melton and Harold B. Gulley, Jr., Attorneys for Claimant.
    William G. Clark, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, John Sisco, seeks recovery for injuries received in an automobile accident, which occurred Saturday, May 3,1958, on Illinois Highway Route No. 1, about 6 miles north of Cave-in-Rock, when the automobile driven by claimant struck a hole in the pavement, bounced over the center line, and collided with a car coming from the opposite direction in the other lane of traffic. The passenger riding in claimant’s car was killed.

It is agreed that claimant was injured, and that he was taken to the Hardin County Hospital at Rosiclare, Illinois, and remained there for 68 days. He was subsequently taken to the Veteran’s Hospital in Marion, Illinois, where he remained from July 11,1958 until June 27, 1959, after which he was taken to the Veteran’s Hospital in St. Louis, where he remained for approximately two months. Claimant presented evidence that, during the period of hospitalization, he was almost completely immobilized, and that at one time he was in a total cast except for his left knee and left shoulder. At the time of the trial, two years after the accident, he could not walk without crutches.

The evidence shows that claimant was 37 years old at the time of the accident; that he went to the 11th grade in school; that he had no special training for office work and the like; and that, after serving in the armed forces, the only work he did was at the Caterpiller plant in Peoria, Illinois, where he was a steam boot operator, engaged in the job of cleaning off motors. Because of the injuries incurred by claimant, he will not hereafter be capable of performing work of this character.

The issues raised in this case are (1) whether respondent was negligent, and, (2) whether claimant was free from contributory negligence.

Claimant testified as follows: He had left Peoria, Illinois about 10:00 P.M. He had worked his normal shift, and left on his trip immediately thereafter, picking up his 70 year-old landlady. He had about ten to twelve hours of sleep the previous night, and was in good physical condition. He stopped twice to put gas in the car en route to his home in Elizabethtown, Illinois. He made this trip about once a month, always using the same route.

He carried lunch and coffee with him, had nothing to eat or drink at any commercial establishment, and did not have any alcoholic liquor in the car. His car was a 1938 Chevrolet in good condition with good brakes. He had everything checked the day before he left. His tires were about a month old. At about 6:30 A.M. he was traveling south on Illinois Route No. 1 at about 40 or 50 miles per hour, at which time he struck a hole in the road, the right front tire blew out, and his car veered to the left over into the lane of on-coming traffic, and collided with another automobile. His car turned over as a result of the collision, and was almost completely demolished, and his passenger was killed. His hands did not come off the wheel at any time, and he did not lose control of the car. His car did not skid before the collision. He put his brakes on, but was immediately hit. He did not see the hole before the accident, nor has he seen it since, but he did feel it when his right front wheel ran down in it. There were no signs warning of the hole, although, there was a “curve sign” about 500 feet before the hole. Claimant said he decreased his speed when he saw the ‘ ‘ curve sign. ’ ’

Claimant presented five witnesses, who were familiar with the particular stretch of highway where the accident had occurred. They stated the hole was about 12 to 18 inches wide, 12 to 14 inches long, and 4 to 8 inches deep in the center. Gary Austin, a milk truck driver, who traveled that section of Route No. 1 six or seven days per week, said the hole had been there for about three weeks, and he had hit it occasionally. He further testified that, when he hit the hole, there was a violent reaction to the steering of his vehicle, and it caused his vehicle to swerve one way or the other, and that it was deep enough that “if you run off in it, your tires would go clear down in it.” Mr. Austin also said that the hole was not readily apparent, and “you would almost have to know it was there, or be looking for it, before you could see it.”

Mr. Edson Jarrells, who drove over the road daily, said that he had occasionally hit the hole, and it was not readily apparent from a great distance, and “you would hit it, if you didn’t know it was there.” He testified the hole had been there about three weeks to two months. He noticed that the hole had been fixed, but that in a short time the blacktop had worked loose, and had come out again.

Randall Oxford testified that the last time he hit the hole was about a week before the accident. It had a violent reaction upon his vehicle, and there was a jerking on the steering wheel when he hit it. He usually traveled from 40 to 50 miles per hour down that highway.

James Mathis also testified that this was not a hole one would readily see in traveling down the road, and that the hole had been there two months or longer.

Respondent presented two witnesses, who had been working for the State Highway Department at the time of the accident. John Angleton, an employee in the Highway Department, said that he had filled the hole in question about 5 days previous to the accident, and that it had been patched at least four times before the accident, since the water was coming from “underground somewhere ’ ’, and working the blacktop out.

Mr. Bert Scott, the sectionman for the section of the highway in question at the time of the accident, testified that, because of the water pressure in the hole, it was harder to make the blacktop stick; there was no sign of any kind along the road that would indicate that there was a hole in the road; that the hole had been “breaking out there some three or four weeks”; that he had repaired it at different times, and that it did not stay repaired “too long.”

Respondent contends that claimant was not free from contributory negligence, since it should be inferred that the right front tire on claimant’s car was substantially defective. This contention is without merit. Nowhere is evidence presented that the tire was defective. On the contrary, since the tire was only one month old, the inference might be that it was not defective. That the hole did not cause other cars to have blow-outs has no bearing on the instant case.

The evidence indicated that the hole was not readily discernible before it was hit, and that striking it did cause a violent reaction to many of the cars driving through it.

That respondent had actual notice of the defective area is undisputed, and substantiated by respondent’s own employees, who testified that they had known of the condition of the highway for at least three to four weeks, and that its frequent attempted repair was insufficient. There is also no dispute about the fact that there were no signs warning of this hole.

In Mitchell vs. State of Illinois, No. 4872, claimant recovered for damages to his automobile caused by driving over a hole in the highway. Although there was no evidence that the State had actual knowledge of the hole, the Court held that it had either actual or constructive knowledge, since the highway had been in a generally defective condition for a considerable length of time, and there were no warning signs, barricades or any warning whatsoever advising the traveling public of the break in the highway. In awarding the recovery, the Court stated:

“We are mindful of the fact that we have held several times that respondent is not an insurer of all people traveling upon its highways, but it does have an obligation to keep its highways in a reasonably safe condition for motorists traveling over them, and, if the highways are in a dangerously defective condition, which might be hazardous to the traveling public, then the respondent is obligated to erect barriers or warning signs warning the people traveling over said highway of any dangerous or defective condition.”

Since respondent in the instant case had ample actual notice that the hole existed, and that attempted repair by blacktopping was ineffective, it must be deemed negligent in not effectively correcting the condition, and in not erecting warning signs or barriers near the hole. The record indicates claimant to have been free from contributory negligence, and he apparently exercised due care for his safety.

In the opinion of this Court, respondent’s negligence was the proximate cause of the accident. There has been no evidence adduced to indicate any negligence on the part of the vehicle with which claimant collided.

Claimant’s injuries are patently severe. The evidence established that he will never be able to walk normally again, and that he is incapacitated from doing physical or manual work in the future. He has had no training for other types of work, although the doctor testified that even work done sitting at a desk could only be accomplished for short periods of time. The amount of medical costs, including the Veteran’s Hospital bills of $10,789.20, is indicative of the severity of claimant’s injuries. It is fortunate that claimant was entitled to receive, without cost, the medical services of the Veterans’ Administration.

This Court, therefore, awards John Sisco the sum of $20,000.00.


text:
    (No. 4900
    Fred M. Mersinger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1962.

      Petition of claimant for rehearing denied March 29, 1963.

    Wagner, Conner, Ferguson, Bertrand and Baker, Attorneys for Claimant.
    William G-. Clark, Attorney General; Robert A. Sprecher, Special Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Fred M. Mersinger, a Certified Public Accountant, seeks recovery for accounting fees and expenses allegedly earned as a result of services performed by claimant and bis organization for the State Auditor of Public Accounts during the biennium 1955-1957.

Claimant’s original petition sought $34,812.50. Claimant thereafter amended his claim to $37,304.02 at the commencement of the hearing. The claim was reduced by claimant to $29,909.07 during the hearing.

A claim for payment for work performed on eighteen State audits is at issue in this proceeding. Orville Hodge, as Auditor of Public Accounts, authorized such audits. During this period, Edward Epping was Hodge’s administrative assistant, and at the same time a 50% partner in claimant’s firm. Dr. Lloyd Morey succeeded to the office of Auditor on July 18, 1956, and thereupon dismissed Epping. Epping allegedly terminated Ms partnersMp relationsMp to claimant on July 20, 1956.

On or befóle July 20,1956, claimant’s firm had completed nine of the audits in question, bearing invoice numbers 239 to 247. Audits numbered 249 to 258, inclusive, were in progress on July 20, 1956. These were completed subsequent to that date pursuant to specific authorization by Dr. Morey. All other audit authorizations on which work had not yet begun were cancelled by Dr. Morey.

Respondent opposes Mersinger’s claim on the grounds that the contracts, which had been awarded to his firm for auditing, were rendered null and void because of violation of Ill. Rev. Stats., Chap. 127, Sec. 75 (1951, 1953 and 1955), which provided:

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

and, Ill. Rev. Stats., Chap. 102, Sec. 3, wMch provides:

“No person holding any office, either by election or appointment under the laws or constitution of this State, may be in any manner interested, either directly or indirectly, in his own name or in the name of any other person, association, trust or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote. No such officer may represent, either as agent or otherwise, any person, association, trust or corporation, with respect to any application or bid for any contract or work in regard to which such officer may be called upon to vote. Nor may any such officer take or receive, or offer to take or receive, either directly or indirectly, any money or other thing of value as a gift or bribe or means of influencing his vote or action in his official character. Any contract made and procured in violation hereof is void." As amended 1949, May 6, Laws 1949, p. 1162, Sec. 1. (Emphasis Supplied.)

Mersinger testified that he had two partners, Edward Epping and Harold Storck; that his partnership with Epping became effective on April 1, 1952; that the partnership agreement was reduced to writing as of November 1, 1952, and provided that Epping would be a 50% partner of Mersinger. He further testified that the partnership with Epping was dissolved on July 20, 1956.

The record further shows that, shortly after Hodge assumed the office of Auditor of Public Accounts on January 12, 1953, Epping also began to serve as Hodge’s “administrative assistant, or executive assistant, or the right-hand-man of the Auditor” (People vs. Epping, 17 Ill. (2d) 557, 162 N.E. 366 at p. 370). Epping was dismissed from the Auditor’s office by Dr. Lloyd Morey, who succeeded to the position of Auditor on July 18, 1956. Although Mr. Epping was not technically on the payroll of the State, the evidence shows that he performed executive functions for the State, such as approving vouchers of the Auditor’s office. For a short period after Epping went to work for the State, he billed the State of Illinois on a time basis. Hodge and Epping then arranged for the State to pay $1,000.00 per month plus Epping’s expenses to the Mersinger firm, which in turn paid Epping.

Edward Epping was called as a witness in the instant proceeding, but refused to testify by invoking his constitutional rights against self-incrimination.

The Illinois Supreme Court affirmed the conviction of Epping for the crime of embezzlement by a public officer or his servant in People vs. Epping, cited above. The action was based on Sec. 80 of the Illinois Criminal Code, Ill. Rev. Stats., 1951, 1953, 1955, Chap 38, Sec. 214, which provides as follows:

“If any state, county, township, city, town, village or other officer elected or appointed under the constitution or laws of this state, or any clerk, agent, servant or employee of such officer, embezzles or fraudulently converts to his own use, or fraudulently takes or secretes with intent to do so, any money, bonds, mortgages, coupons, bank bills, notes, warrants, orders, funds or securities, books of record, or of accounts, or other property belonging to, or in the possession of the state or such county, township, city, town or village, or in possession of such officer by virtue of his office, he shall be imprisoned in the penitentiary not less than one nor more than fifteen years.” (Emphasis Supplied.)

Bpping acted as a State official in recommending assignments of audits to “independent” agencies, such as F. M. Mersinger & Co., which received 90% of such assignments. He then worked on such audits as a partner in the Mersinger firm, and then he approved and reviewed his own audits in the guise of a State official. The evidence showed that completed audits were delivered to and accepted by him.

Claimant Mersinger billed the State of Illinois for a total of $532,563.30 for the period of February 13, 1953 to December 15, 1956, of which the State of Illinois has paid a total of $497,730.80. In People ex rel Smith vs. Mersinger, 18 Ill. (2d) 486 (1960), the Supreme Court refused to allow the State to recover this amount. That action was based on a 1955 conflict of interest statute, which first provided for a forfeiture of certain contracts, and subsequently was amended to provide for a fine only. The Court held that the contract was fully executed on both sides, and could not be declared forfeit insofar as recovery of monies already paid were concerned. It did not consider the legality of the contract itself.

If Orville Hodge, who held office by election under the Constitution of the State of Illinois, took or received, either directly or indirectly, any money or other thing of. value as a gift or bribe or means of influencing his action in his official character, then any contract made and procured in such manner would be void (Chap. 102, Sec. 3, as quoted above).

The authorization for all services supplied by Mersinger, and represented by the eighteen invoices at issue in the instant case, was originally given by Hodge. During this same time, Epping was a partner in the Mersinger firm and Hodge’s assistant. Claimant introduced copies of sixteen letters of authorization, signed by Hodge as Auditor, ordering the audits upon which the claim herein is based, and testified that the two other letters of authorization had also been executed by Hodge.

Mersinger testified that on March 14, 1953 he loaned $10,000.00 to the Hodge Insurance Agency, and on the same date received a note for $10,000.00, executed by the Hodge Agency and by Orville Hodge, personally. Mersinger further testified that on or about the same date Epping also loaned Hodge or the Hodge Agency $10,000.00. The principal amount of $20,000.00 loaned by Mersinger and Epping to the Hodge Agency has never been repaid. The Hodge Agency was owned solely by Orville Hodge.

Hodge became State Auditor on January 12, 1953, and the Mersinger Company received its first State of Illinois warrant issued during Hodge’s term on February 13, 1953. In the following three and one-half years the Mersinger firm was paid the sum of $497,730.80 by the State of Illinois for work ordered by Orville Hodge.

Harold Storck testified that he was a Certified Public Accountant, and a resident partner in the Springfield office of F. M. Mersinger & Co. from August 1, 1955 to April 15,1957. He testified that the Springfield office had a system by which the partners, associates and employees kept a record of their time and expenses. Testimony revealed that, during 1954, 1955 and 1956, John Casper received salary and traveling allowances from the Mersinger Springfield office in the total sum of $7,201.50; Thelma Casper received $7,201.50; and James Erickson received $15,775.00. These sums were allotted in monthly installments. Evidence further showed that John Casper was a driver for Orville Hodge, and a custodian of Hodge’s lake home; Thelma Casper was Orville Hodge’s housekeeper, and James Erickson was a chauffeur for Mrs. Orville Hodge. Ho services were rendered to the Mersinger firm by any of these persons.

Of nineteen checks made payable to James Erickson, each in the amount of $75.00, one or two were signed by Epping, and the rest were signed by Harold Storck. At least thirteen of these checks had been cashed by Hodge, and deposited in his so-called “brown envelope” account at the Southmoor Bank and Trust Company in Chicago.

The evidence further shows that, when Dr. Morey assumed the office of Auditor of Public Accounts, he authorized claimant Mersinger’s firm to complete audits numbered 249 through 258, which had already been begun, although he cancelled all other engagements for which no work had as yet been started. Morey also accepted the audit reports in question as satisfactorily meeting the engagements.

The transcript of the record quotes Dr. Morey’s testimony as follows:

“I found on taking office that some work had been done on all of these engagements [249 to 258], Therefore, I authorized Mr. Mersinger’s firm to continue and complete those audits and submit reports. . .On these nine audits the reports of the audits were not — they were in due time received by my office. They were examined and accepted as satisfactorily meeting the engagements and the reports disposed of in the usual manner. (Emphasis Supplied.)
“We received itemized statements of time and expenses which were examined. With respect to the hourly rate of pay it was my conclusion that —referring to my specific notes here — with respect to the scale of per diem charges, these were within customary and reasonable rates in our opinion.
“Q. You don’t then, sir, specifically have a copy of the letter where you directed the Mersinger Company to proceed to complete the nine audits?
A. I do not find such a letter.
Q. You distinctly remember, however, having written such a letter?
A. I cannot say that a letter was written. I have reason to believe that it was, but it hasn’t heem furnished me by the office, which I judge means they have not been able to locate it.
Q. Dr. Morey, at the time you directed Mr. Mersinger’s firm to complete these nine audits that were in progress on July 15, 1956, did you feel or were you advised that you had sufficient statutory authority to direct these audits be concluded? . . .Were you advised, sir, that you had specific statutory authority, or did you know of specific statutory authority to have audits made of State agencies?
A. I did believe at that time I had full statutory authority to make such audits — to have such audits made.
Q. At the time you directed the Mersinger firm to complete these nine audits did you, sir, have personal knowledge from the records maintained in your office that there were sufficient sums on hand in the appropriations made for these types of services to pay the Mersinger firm the amount of money that would be required if they completed the services?
A. Yes. Otherwise I would not have confirmed those commitments.” Where a statute expressly declares that certain types of contracts are void, there is then no doubt of the legislative intent, and any agreement of the nature thus voided by statute is unlawful. The same is true where the contract is in violation of a statute, although not therein expressly declared to be void (13 C. J., Contracts, Sec. 351, p. 420). Therefore, violation of Ill. Rev. Stats., Chap. 127, Sec. 75, or Chap. 102, Sec. 3, heretofore set forth, would render Mersinger’s auditing contracts void and unenforceable. That both statutes have been violated must be readily concluded from the evidence presented. The Supreme Court recognized that Bpping was a State employee at the same time that he was a partner in claimant Mersinger’s firm.

The record is also clear that Hodge accepted at least $50,178.00 directly or indirectly for his own benefit from Mersinger, Bpping, and Mersinger & Company. A reasonable inference may be drawn from the foregoing, when coupled with the fact that Mersinger received at least 90% of the auditing contracts awarded by Hodge, that Hodge took “money or other thing of value as a gift or bribe or means of influencing his . . . action in his official character”, as prohibited by Ill. Rev. Stats., Chap. 102, See. 3.

It has been held that a contract may be illegal and void, yet not be an absolute nullity. This principle is stated in 13 C. J., Contracts, Sec. 339, p. 410, as follows:

“The expression ‘void’ as used in this connection has the meaning of not affording legal remedy rather than of absolute nullity, since such contracts when executed may be indirectly effective in that no relief will be granted to either party.”

Hence, a contract may be non-forfeitable yet unenforceable, and a decision holding the contracts authorized by Orville Hodge unenforceable in the Court of Claims would not conflict with the decision of the Supreme Court in People ex rel Smith vs. Mersinger, cited above, which did not allow forfeiture of executed portions of the contract.

It is the opinion of this Court that recovery for work done on audits numbered 239 to 247 should be denied on the grounds that the contracts involved are illegal, and illegal contracts are unenforceable. Those audits were authorized by Hodge and Bpping, and were completed before Hodge had left office and Bpping had resigned from the Mersinger firm, all in violation of the statutes upon which respondent relies.

The question next arises as to the effect of Dr. Morey’s direction that claimant proceed to completion with audits numbered 249 to 258. Under Illinois law, as defined by a series of cases, it appears that an illegal contract may not be ratified. In the case of State Bank of Blue Island vs. Benzing, 383 Ill. 40 at p. 54, the Supreme Court stated:

“A contract void because it is prohibited by law can in no manner be enforced. The law does not prohibit and also enforce a contract. (Knass vs. Mad. and Kedzie Bank, 354 Ill. 554; People vs. Wiersema Bank, 361 Ill. 75.) Where a contract is ultra vires, it is not only voidable but wholly void and of no legal effect and cannot be ratified, nor can performance by the parties give it validity or become the foundation of any right upon it, ■nor is either party, by assenting to it or by acting upon it, estopped to show It was prohibited. (People vs. Wiersema Bank, 361 Ill. 75; Steele vs. Fraternal Tribunes, 215 Ill. 190.)”

This Court holds, therefore, that no part of the contracts, which were rendered void because of violation of Ill. Rev. Stats., Chap. 127, Sec. 75; and Chap. 102, Sec. 3, may be enforced. However, when Dr. Morey specifically authorized Mersinger to complete audits 249 through 258, and Mersinger did so in reliance thereon, the State received a positive benefit untainted by illegality, and should pay for such services rendered subsequent to July 20, 1956.

A review of the detailed computations in this proceeding will reveal that work in the sum of $9,916.63 was performed by claimant prior to July 20, 1956, and work performed after that date amounted to $19,992.44. A sum of $2,491.52, attributable to previously unbilled time and expense, was included in the figure of $19,992.44. Since this amount had never been billed to the State, it is not recoverable in this action. The amount involved is, therefore, reduced to $17,500.92.

The evidence herein further reveals that a number of payments in advance were received by claimant from the State of Illinois. In particular, we note warrant No. 589 027. A total of $5,000.00 of this warrant was allocable to invoices Nos. 250 and 254, both of which were among those completed subsequent to July 20, 1956. We hold such sum of $5,000.00 to be an equitable offset against the obligation of respondent, and we accordingly award to claimant the sum of $12,500.92.


author: Pezman, J.

text:
    (No. 4975
    Laurence E. Kent, Mina M. Kent and State Farm Mutual Automobile Insurance Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.

    Peel, Stickell, Henning and Mathers, Attorneys for Claimants.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Pezman, J.

On April 23, 1959, one George Dobrich escaped from the Galesburg State Research Hospital, and took the automobile of Laurence E. Kent, which was in his garage with a key in the ignition. Before taking the automobile, Dobrich threatened and frightened Mina M. Kent, the wife of claimant, Laurence E. Kent. He again frightened her when he backed the car from the garage. The car did not strike her. Dobrich, after leaving the Kent residence, wrecked the 1956 Cadillac two-door sedan, and the State Farm Mutual Insurance Company paid claimant, Laurence E. Kent, the sum of $2,950.00, as the car was considered a total loss. The sale of the salvage of said automobile reduced the insurance company’s loss to $2,079.50. Claimant, Laurence E. Kent, contends the market value of the 1956 Cadillac in the Galesburg area was $3,200.00. Therefore, he suffered a loss of $250.00. Mina Kent claims that, as a result of pain, suffering, loss of sleep and nervousness, due to the threats by George Dobrich, she sustained damages in the sum of $2,500.00. The State Farm Mutual Insurance Company is asking for the sum of $2,079.50, which sum it has paid out on behalf of Laurence E. Kent.

George Dobrich, the inmate, weighed in excess of 200 pounds, was five feet ten inches tall, and thirty-four years of age. He was suffering from an illness classified as insanity. He was admitted to the hospital on December 19, 1958, and on December 22, 1958 was transferred to a locked ward. He subsequently was given a limited permit to be out of the ward for short periods of time. This permit, however, was withdrawn on or about March 13, 1958, because of his demands to go home to his mother. According to the hospital records, he was classified as an uncooperative patient. On April 23, 1958, Dobrich was housed in Ward C-3, which had standard wooden doors with glass panels in the upper half. There was one attendant on duty in Ward C-3 at the time of his escape. To escape, he forced the wooden doors of Ward C-3, passed through a sun porch, where there was no attendant, and then out of the building. While leaving the hospital grounds he attempted to secure car keys from one attendant, and, when the attendant did not have them, he started in a threatening manner toward another employee. This female employee recognized Dobrich, and got into a car and locked the doors. At the time of the escape, there was a maximum of two security officers on duty in the hospital grounds, which covers 159 acres. According to the testimony of one of the witnesses, approximately forty-five or more inmates leave the grounds each year without permission. Following his escape, Dobrich went to the residence of claimants, Laurence E. Kent and Mina Kent. He told Mrs. Kent that he had a gun, and took possession of the automobile belonging to claimants. He backed out of the garage at such a rapid pace that it was necessary for Mrs. Kent to jump back to avoid being run over. He then drove the car- until it was subsequently damaged beyond repair.

Where the State, by legal process, removes a person from the normal stream of activity, and places him in a mental institution, then it must be anticipated that, because of the patient’s condition, certain precautions of care and restraint are required of the State in its control of such inmate. In Dixon Fruit Company, Et Al, vs. State of Illinois, 22 C.C.R. 271, this Court held:

“The State is not an insurer against damages caused by property being stolen by escaped inmates. Claims under the statute will be allowed dnly in the event that the State is found to be at fault."

In the case at hand there were only two guards on institutional security duty with an area of 159 acres constituting the hospital property. The patient had evidenced in the past the desire to go home to his mother, and the authorities were well aware of this desire. The Institutional Administrator testified that about forty-five inmates a year leave the hospital grounds without permission.

We, therefore, conclude that respondent was negligent in allowing the inmate to escape.

Respondent contends that claimants were eontributorily negligent in that the keys to the ignition were left in the car, and that this was the proximate cause of any loss, referring to Sec. 189 of Chap. 95%, 1957 Ill. Rev. Stats.

We do not agree with respondent’s contention. The facts show that the Kent automobile was parked in the garage at their home, and the keys were left in the ignition. This Court in the case of United States Fidelity and Guaranty Company, A Corporation, vs. State of Illinois, 23 C.C.R. 188, held as follows:

“It is noted from the testimony of the only witness testifying in the case on the particular point that the automoile was parked in the driveway of a private residence at the time it was stolen and not upon a public highway.
"Sec. 189 does not specifically refer to any particular place, and, therefore, by the terms of the Uniform Act Regulating Traffic on Highways, does not apply to a vehicle left unattended at any place other than on the public highway.
“This is the only reasonable construction of the statute. If it applied to all places, then leaving the key in an automobile while parked in a locked garage would be as much a violation of the statute, as would parking it in a car port or private driveway at a residence. This could not have been the Legislature’s intention.
“We know of no rule at common law requiring the owner of an automobile to keep it locked under the circumstances involved herein, and do not intend to announce such rule ourselves.”

We, therefore, find that claimant, State Farm Mutual Automobile Insurance Company, be awarded the sum of $2,079.50.

We further find that claimants, Laurence E. Kent and Mina M. Kent, have failed to establish their cause for compensable damages, as set forth in their petition.


text:
    (No. 4983
    Mary June Schempp, Administrator of the Estate of Wallace Schempp, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.

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

Claimant seeks recovery of $25,000.00 as Administrator of the Estate of Wallace Schempp for his alleged wrongful death as a result of a two-car collision at the junction of U.S. Route No. 24 and Illinois Route No. 96, about six miles north of Quincy, Illinois.

The accident occurred on December 17, 1960 at approximately 10:30 A.M., when Wallace Schempp was returning from Hendon, Illinois, to his place of residence in Quincy, Illinois. He frequently traveled on this highway.

U.S. Highway No. 24 was a newly constructed limited access, divided freeway, consisting basically of four lanes running in a northeasterly-southwesterly direction. This highway intersects with Illinois Highway No. 96, a two lane highway, which runs in a due north and south direction, and crosses U.S. Highway No. 24 on the same level.

According to eyewitness, James Russell Williams, who was stopped at the intersection stop sign on Route No. 96, the 1954 Ford car driven by Mr. Schempp was approaching from the east on Route No. 24, and making a left turn to the south onto Route No. 96. Mr. Williams also saw a 1951 Cadillac traveling east on Route No. 24. When Mr. Williams first noticed the Ford, it was in the left-hand turn lane on Route No. 24, and was traveling slowly across the northerly of the two lanes for eastbound traffic. The Ford was approximately in the middle of the east bound lanes when it was struck by the Cadillac. After the impact, the Ford was knocked in an easterly direction, and a man, later identified as Mr. Schempp, flew out of the door of the Ford. Mr. Williams said that, in his opinion, the Cadillac was not traveling excessively fast. He did not know if the Ford had come to a compíete stop before it made the left turn, since it was in the process of turning at the time he first saw it.

The record shows that Wallace Schempp died 45 minutes after arrival at St. Mary’s Hospital as a result of a skull fracture, brain damage, shock and fractures of the arm and forearm.

Claimant contends that respondent was negligent in its duty to regulate, warn and guide traffic by failing to place proper signs and markings at the intersection, since the intersection was allegedly confusing and hazardous. Claimant further contends that the 1959 Ill. Rev. Stats., Chap. 95%, Sec. 126, imposed the duty to provide signs and markings.by the following language:

“The Department shall place and maintain such traffic-control devices. . .on all highways under its jurisdiction, as it shall deem necessary to indicate and to carry out the provisions of this Act, or to regulate, warn or guide traffic.”

John R. Short, an Illinois State Police Trooper, who investigated the accident, testified that there were stop signs for Route No. 96 at the intersection, but there were no traffic control signs for traffic approaching from the west on Route No. 24. There was one small sign with black and white stripes situated on the dividing island, which was visible to traffic approaching from the east.

Trooper Short stated that the surface of the road at the intersection was dry at the time of the accident, and the road was clear. He also testified that the Ford had been struck in the right front end by the Cadillac.

Before claimant can recover damages from the State, she must prove that Wallace Schempp was in the exercise of due care and caution for his own safety; that the State of Illinois was negligent, as charged in the complaint; and, that such negligence was the proximate cause of the accident. McNary vs. State of Illinois, 22 C.C.R. 328, 334; Bloom vs. State of Illinois, 22 C.C.R. 582, 585; Link vs. State of Illinois, No. 4719.

Nowhere in the record is there evidence that Wallace Schempp was in the exercise of due care and caution for his own safety. From the evidence adduced, we must conclude to the contrary. Ill. Rev. Stats., 1959, Chap. 95%, Sec. 166, provides as follows:

“The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction, which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this Act, may make such left turn, and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right of way to the vehicle making the left turn.”

There is no evidence that Schempp had stopped in order to yield to oncoming traffic, or that he had signaled. His car was in motion when it was seen by the witness. The Cadillac was apparently traveling at a reasonable speed.

Route No. 24 had been completed several weeks before the accident, and Schempp was evidently familiar with the road and the intersection, having been in the habit of traveling on the road to Hendon to get his hair cut. According to the testimony, he had probably passed the intersection in question on the morning of the accident.

Schempp was not, in our opinion, met with a condition, which was extremely and inherently dangerous and hazardous, or unknown to him. He knew he was crossing two lanes of a limited access freeway. There was no danger of his being struck in the rear on Route No. 24, as contended by claimant, since the highway had an additional lane at the intersection for the sole use of automobiles making left turns onto Route No. 96.

The statutory duty imposed upon the State by the 1959 Ill. Rev. Stats., Chap. 95%, See. 126, is only to ‘ ‘ place and maintain such traffic control devices ... as it shall deem necessary . . .”. The statutory regulations covering the conduct of left turns at all unmarked intersections would constitute a sufficient guide for drivers in such circumstances. The fact that the State subsequently posted a stop sign for westbound cars turning left onto Route No. 96 does not manifest any negligence of respondent prior thereto.

The proximate cause of this accident was the lack of due care exercised by either the deceased or the driver of the Cadillac. It was in no way the result of any act or omission by the State of Illinois.

This Court sympathizes with the great hardship imposed upon the widow and child of the deceased, because of their loss of the head of the family. However, we have consistently held that the State of Illinois is not an insurer of all persons traveling upon its highways. Claimant has failed to prove that the deceased was free from contributory negligence, or that the negligence of respondent was the proximate cause of the accident.

An award to claimant is, therefore, denied.


author: Tolson, J.

text:
    (No. 5053
    Freesen Bros., Inc., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.

    Robinson, Foreman, Rammelkamp, Bradney and Hall, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, J.

On July 27,1962, Freesen Bros., Inc., A Corporation, filed its complaint seeking an award in the amount of $6,546.68.

The complaint alleges that claimant constructed a road in Mason and Cass Counties for the Department of Conservation, and, due to a flooding condition, it was unable to complete the road within the time prescribed by the contract. In addition to the contract, claimant installed a twenty-five foot culvert as an extra at the request of the department.

On January 27, 1962, claimant submitted its statement, and was advised that the appropriation had lapsed on September 30,1961, and that as a result no funds were available for payment.

On December 18, 1962, a Departmental Report was filed by the Department of Conservation acknowledging the propriety of the claim, and further stating that the work was satisfactory, and that the amount sought by claimant corresponded to the records of the department.

As a result of this Report, on January 28, 1963, a joint stipulation of facts was filed by claimant and respondent, which recited in substance that the complaint properly set forth the essential facts, that the amount requested was true and correct, and would have been paid in due course had the appropriation not lapsed.

This Court has held in previous decisions that, where the evidence shows that the only reason the claim was not paid was due to the fact that, prior to the time a statement was presented, the appropriation lapsed, an award will be made.

Continental Oil Co. vs. State of Illinois, 23 C.C.R. 70

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

An award is hereby made to Freesen Bros., Inc., An Illinois Corporation, in the amount of $6,546.68.


text:
    (No. 5084
    Gerald Lee Bradley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.

    Kenneth H. Otten, Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, J.

On January 22, 1963, Gerald Lee Bradley filed his complaint seeking an award in the amount of $411.50 by reason of a lapsed appropriation.

On March 15, 1963, a stipulation of facts was filed by claimant and respondent reciting the following:

1. Gerald Lee Bradley was a certified employee holding the position of Park Custodian I.

2. On March 13, 1961, the Director of the Department of Conservation initiated a disciplinary suspension against claimant for a period of 30 days. (March 17, 1961 to April 15,1961.)

3. A discharge proceeding was initiated against claimant designating April 14,1961 as the date of separation.

4. On January 18,1962, the decision of the Hearings Referee of the Civil Service Commission was not approved by the Commission, and it was ordered that claimant be reinstated as of March 1, 1962, and receive back pay from April 14,1961 to March 1,1962, minus earnings from, other employment during that period.

5. That claimant was paid from July 1, 1961 to March 1, 1962, but the Department could not pay for the period from April 14, 1961 to July 1, 1961, as the appropriation had lapsed.

6. The salary of claimant for the period was $646.00, less $234.50 earned by him from Oilwell Service, Inc., leaving a balance due of $411.50.

This Court has held in previous cases that it is the duty of a Civil Service employee to mitigate damages by seeking employment elsewhere while his petition for reinstatement is pending.

Schneider vs. State of Illinois, 22 C.C.R. 453

It appears that the Civil Service Commission adequately protected the State by its inquiry, as it appears that claimant was employed, and the amount of $234.50 was deducted from the claim.

This case, therefore, may be disposed of as a lapsed appropriation case.

Where it appears from the evidence that a claim is proper, and would have been paid in due course had the appropriation not lapsed, an award will be made.

Standard Oil Co. vs. State of Illinois, 23 C.C.R. 72

Village of Barrington vs. State ,of Illinois, 23 C.C.R. 29

An award is, therefore, made to Gerald Lee Bradley in the amount of $411.50.


text:
    (No. 4882
    Raymond A. Harper and Phyllis M. Harper, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    Scott and Sebo, Attorneys for Claimants.

      William G. Clark, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimants seek recovery of $7,500.00 for damages allegedly sustained to real estate owned by them. It is claimed that the damages resulted from the alteration by the State of Illinois of State Route No. 9 and U.S. Route No. 24, and the intersection of these routes in the Village of Banner, Pulton County, Illinois.

Claimants have alleged the following:

Claimants purchased the property, which will be designated herein as Tracts I and II, on contract in 1942. In 1944, they obtained a deed to the premises, having paid $1,500.00 for both tracts. Tract I was improved with a home, where the parties lived from 1942 to 1954, a garage, a well, and a storm cave. Tract II was, at the time of the purchase, and is now unimproved. Tract I abuts the right-of-way of U.S. Route No. 24 on the north, and abuts the right-of-way of a portion of Route No. 9 on the west. It is separated from the south edge of the right-of-way of Route No. 9 by a small tract of land. Tract II lies south of Tract I, and abuts Route No. 24 on the south.

Claimants rented their home on Tract I for $35.00 per month from 1954 to August, 1958, when the tenants were forced to move because of flooding. No tenants have lived there since.

Claimants spent approximately $2,000.00 on improvements to the house while they lived on the premises, in that they, among other improvements, added a room, installed a septic tank, repaired the foundation, and put doors on the cave and the garage.

In 1958, the State of Illinois commenced reconstruction of Routes Nos. 24 and 9. The intersection and claimants’ access to said routes were changed. Claimants’ driveway now empties onto Route No. 24 at a 90° angle, and their former direct access to Route No. 9 is cut off. To go northeast on Route No. 24, one must now cross a raised divider. Prior to the construction, claimants were able to drive onto a curve and immediately onto Route No. 9 or 24.

In the spring of 1958, the State of Illinois commenced to grade the slopes, remove trees and shrubs, and completed the change in the intersection. Route No. 9 was raised, and the grades increased in slope toward the property of claimants. Heavy rains fell, and surface water poured down the graded slopes of Routes Nos. 9 and 24, particularly Route No. 9, washing down with it great quantities of mud and silt. The basement of the house and the cave filled with mud, and, at the time the water level was highest, it came to a point approximately six inches below the windows in the kitchen, approximately four feet high. Water and silt covered the back porch, and the basement was completely flooded. As a result, the foundation cracked and settled, the boards swelled, the septic tank was destroyed, and the walls of the house cracked. Since the flooding in August of 1958, the basement has flooded on two different occasions. The amount of mud now flowing across Tract I has diminished, but water still flows across the tract and past the house at a greater rate and quantity than before the change in roads. The well on Tract I was contaminated by this flooding. The yard was covered by mud up to one foot thick in spots, and the driveway cannot be used to get into the garage after a rain. The lot is presently without utilities.

Tract II has not been used for any purpose for several years, but was once used as a garden by claimants. Tract II has been flooded most of the time since the change in the roads. Claimants were offered $500.00 for Tract II three or four years prior to the road change.

Claimants testified that, from 1942 until 1958, they had trouble with water on Tract I on only one occasion. In 1942 water seeped from the cave and into the basement. The property has always been below the level of the highways.

According to Alvin Moine, respondent’s engineer, mud and silt did flow across claimants’ property. He testified that Eoute No. 9 was widened and resurfaced, the shoulders were widened, the slopes were flattened, the grades were changed about three or four inches, and the shoulders were raised approximately three or four inches. He stated that, prior to the rain on June 24, 1958, the removal of the trees, shrubs and top soil had been done, and that more water will flow across this type of area than one which has foliage. A paved ditch, flume and burn, which, according to Mr. Moine, is a deterrent to water flow, had not been constructed by respondent at the time of the rainfall in June, 1958. This project was completed in July, 1959.

Article II, Sec. 13 of the Illinois Constitution of 1870, provides:

“Private property shall not be taken or damaged for public use without just compensation.”

It is the opinion of the Court that the damage to claimants’ property was in fact caused by the State of Illinois through its reconstruction of Routes Nos. 9 and 24 through grading and alteration of drainage in conjunction with rainfall, which caused silt, mud and water to wash across claimants’ property.

The remaining question is the extent of damages to claimants’ property.

Harold W. Omer, called as a witness on behalf of claimants, testified that he appraised property for estates and for the bank of which he is cashier. In his opinion, Tract I was worth approximately $3,500.00 to $4,000.00 prior to the spring of 1958, but was worthless at the present time. He stated that the premises could not be lived in or sold to anyone as living quarters, and did not have a commercial value in its present state.

Ray Hartle, a carpenter, and a contractor in the building, renovation and repair of homes, estimated that it would cost about $4,800.00 to restore the property to useable and liveable quarters.

Respondent presented the testimony of Berwyn D. Johnson, who also appraised Tract I. Prior to August, 1958, he estimated the property to have been worth $4,500.00. He estimated the value of the property at the time of the hearing to be about $2,000.00, since he feels the commercial value of the property has increased since August, 1958.

The Court has held that, where private property is not taken by reason of the construction of a public improvement, but is damaged, the owner is entitled to recover the difference between the fair cash market value of the property unaffected by the improvement, and its fair cash market value as affected by it. Nauyoks vs. State of Illinois, 11 C.C.R. 542; Harbeck vs. State of Illinois, 13 C.C.R. 70.

Claimants’ request for recovery because of mere inconvenience in access to Routes Nos. 24 and 9 is without merit, since the law is clear that claimants have no property right in the use of the highways. City of Chicago vs. Rhine, 363 Ill. 619; Williams vs. State, 21 C.C.R. 357.

Claimants have not proved any ascertainable amount of damage in connection with Tract II.

The determination of damages in an instance such as this is a difficult task. The Commissioner, who has had a first-hand opportunity to observe the demeanor of the witnesses, has recommended that the Court assess damages of $2,500.00. We believe his conclusion to be reasonable.

We, therefore, award claimants the sum of $2,500.00.


text:
    (No. 4972
    Verna M. Lott, as Administratrix of the Estate of Hugh B. Lott, Jr., Verna M. Lott, Individually and as surviving spouse of Hugh B. Lott, Jr., deceased, and as next friend for Hugh Benwick Lott, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    John E. Cassidy, Jr., and Ben C. Leiken, Attorneys for Claimants.
    William G. Clark, Attorney General; Stanley W. Crutcher, Assistant Attorney General, for Respondent.
   Perlin, C. J.

On March 14, 1959, Hugh B. Lott, Jr., a Second Lieutenant in the Illinois Air National Guard, was killed while flying a jet fighter plane over Peoria County, Illinois. The Departmental Report of the Adjutant General confirms that, at the time of the accident, Lieutenant Lott was performing Inactive Duty Training, and was killed in the line of duty.

. Claimants in this proceeding are Verna M. Lott, Administratrix of the Estate of deceased and his surviving spouse, and Hugh Benwick Lott, son of the deceased, who was horn on June 19, 1959. Recovery is sought in the sum of $21,000.00 in behalf of Hugh Benwick Lott, and $30,000.00 in behalf of Verna M. Lott.

Although this case was commenced under Ill. Rev. Stats., Chap. 129, Sec. 143, that section was changed in 1957 to Ill. Rev. Stats., Chap. 129, Sec. 220.53 (1957), which provides as follows:

“When officers, warrant officers or enlisted personnel of the Illinois National Guard or Illinois Naval Militia are injured, wounded or killed while performing duty in pursuance of orders from the Commander-in-Chief, said personnel, or their heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

The provisions of former Sec. 143 and current Sec. 220.53 are substantially similar, and the arguments of the parties in this case are applicable to the new as well as the old statutory sections.

Claimant contends there is no limitation on the amount, which may be awarded under the above statute, and that her claim is reasonable.

We have great sympathy for the grievous loss suffered by the wife and child of the deceased. The Court of Claims, however, has established a policy of limiting the amount of recovery in such cases.

In Ward vs. State, No. 4897, the Court stated:

“It is the opinion of this Court that, while the section of the statute under which recovery is here sought appears to impose no maximum amount on its face, the Legislature adopted this provision as remedial legislation, and did not intend that it be applied without equal standards or reasonable limitation of amount.”

The Court further held that “liability without fault must be necessarily limited to protect the State from astronomical claims, which might be urged by claimants under the Military and Naval Code, just as the State is protected from injury claims by ordinary State employees under the Workmen’s Compensation Act.”

The Court established the premise that, in personal injury or death cases brought pursuant to the Military and Naval Code, Sec. 220.53 and similar provisions, recovery shall be limited to an amount no greater than the maximum prescribed for similar claims under the Workmen’s Compensation Act in effect in the State of Illinois at the time the injuries were incurred. In determining the extent of aid to be contributed by the State, it is the policy of the Court to disregard payments from the Federal Government or other sources.

The maximum amount allowable to a widow and one child under the Workmen’s Compensation Act in effect on the date of the accident herein (Ill. Rev. Stats., 1957, Chap. 58, Sec. 138.7) was $11,250.00.

We, therefore, award to claimant the sum of $11,250.00.


text:
    (No. 4986
    Luther Frey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 24, 1963.
    R. W. Harris, Attorney for Claimant.
    William G. Clark, Attorney General, by Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant seeks $25,000.00 recovery for injuries alledgedly suffered while he was an inmate in the Illinois State Penitentiary at Menard, Illinois, on September 2, 1960.

Respondent urges that an award be denied and the complaint be dismissed because of the failure of claimant to comply with Sections 22-1 and 22-2 of “An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an Act herein named,” Pars. 439.22-1 and 439.22-2 of Chap. 37 of the 1959 Ill. Rev. Stats. These sections provide as follows:

“22-1: Within six months from the date that such injury was received 01 such a cause of action accrued, any person who is about to commence any action in the Court of Claims against the State of Illinois for damages on account of any injury to his person shall file in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any.
“22-2 If the notice provided for by Section 22-2 is not filed as provided in that Section, any such action commenced against the State of Illinois shall be dismissed, and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury.” (Emphasis supplied.)

Iii the instant ease, the required statutory notice was not filed in either the office of the Attorney General or the Clerk of the Court of Claims until April 25, 1961, more than six months after the date of the alleged accident herein.

Since the notice herein was not filed within the six-month period required by the statute, this Court must deny the claim. The complaint is hereby dismissed. (Gossar vs. State of Illinois, No. 4828.)