text:
    (No. 4864
    Emmett E. Parks, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1960.

    Matron R. Crenshaw, Attorney for Claimant.
    Grenville Beardsley, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On March 2, 1959, Emmett E. Parks filed his verified complaint in this Court seeking an award for damages to his automobile alleged to have been caused by a member of the Illinois National Guard.

The record consists of the complaint, bill of particulars, Departmental Report, transcript of evidence, exhibits, and Commissioner’s report.

There appears to be no serious dispute concerning the liability of respondent, and the report of the Commissioner in the following words and figures is hereby adopted by the Court:

“The evidence in the above entitled cause was taken on September 25, 1959, in the City of Chicago, Illinois. Mayron R. Crenshaw represented claimant, Emmett E. Parks, and Lester Slott, Assistant Attorney General, represented respondent, the State of Illinois.
The claim is for damages arising out of an automobile accident.
On June 3, 1958, at about 8:30 P.M., claimant, Emmett E. Parks, was parked on the west side of Wentworth Avenue, Chicago, Illinois. The parked vehicle belonging to claimant was a 1953 Chevrolet. It appears that Anthony Stewart, a member of the Illinois National Guard, drove a 2Y¿ ton truck from a garage on the east side of Wentworth Avenue across Went-worth Avenue, and, in attempting to make a right turn, struck the parked vehicle belonging to claimant.
The total damages came to $288.50. However, when Merit Chevrolet Inc., who repaired said vehicle, found that an insurance company was paying for the claim, it allowed a discount of $46.00, so that the total damage amounted to $242.50. Claimant has a $50.00 deductible interest, and the Government Employees Insurance Company has a subrogation interest amounting to $192.50.
Claimant, Emmett E. Parks, was the sole witness at the hearing, and testified to the occurrence. His testimony was substantially similar to the allegations in the complaint. The State did not introduce the testimony of any witnesses, but did introduce a Departmental Report as an exhibit.
On the basis of the evidence, it appears that respondent, the State of Illinois, is guilty of negligence as a result of the acts of its agent, Anthony Stewart, a member of the Illinois National Guard. Claimant does not appear to have been guilty of contributory negligence. He was legally parked.
It is, therefore, recommended by this Commissioner that the Government Employees Insurance Company be awarded the Sum of $192.50, and claimant, Emmett E. Parks, the sum of $50.00, his deductible interest.”

Awards are, therefore, made to the Government Employees Insurance'. Company in the sum of $192.50, and to claimant, Emmett E-. Parks, in the sum of $50.00.


source: Caselaw Access Project

author: Wham, J.

license: Public Domain

text:
    (No. 4867
    Frank Drogos, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1960.

    Leon L. Mazor, Attorney for Claimant.
    Grenville Beardsley, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant contends that his wife’s $491.00 ring was lost by the negligence of respondent’s agents at the Chicago State Hospital on or about February 15, 1958, while his wife was a patient of the hospital.

Claimant was the only witness, who testified in this case, and it was admitted in the Departmental Report that the ring was missing while in the custody of respondent.

During the hearing it developed that claimant was indebted to the Department of Public Welfare in the amount of $113.14 for hospital care for his wife. Counsel for claimant consented to this amount being considered as a set-off, although not pleaded by respondent.

The facts appearing from the evidence offered herein are as follows: On February 15, 1958° Mrs. Frances Drogos, wife of claimant, Frank Drogos, was a patient at the Chicago State Hospital. She was home visiting her family on February 15, when, due to her condition, it was necessary to return her to the hospital. Upon entering the hospital, she was placed in the care of Theresa Willie and Lucille Wohler, two nurses at said hospital. Claimant was informed by the nurses that it would be better if he left after he had placed his wife in their custody. While in the care of the said nurses, two rings were removed from the fingers of Frances Drogos. One of the two rings was either lost or misplaced by one of said nurses, as it was never turned over to the administrators of the hospital. It is admitted in the Departmental Report that said ring has been lost.

The ring in question consisted of a white gold band set with fifteen diamonds, and was valued at $491.00. This is the amount, which claimant paid for the ring approximately three or four years prior to its loss.

From these facts we conclude that respondent, as bailee of the ring, was guilty of negligence in caring for it, and, as a proximate result thereof, the ring was lost. Therefore, claimant is entitled to damages in the amount of $491.00, the value of the ring.

It appears from the evidence, however, that respondent, State of Illinois, is entitled to a set-off, or a counterclaim against claimant, Frank Drogos, since he owes the Department of Public Welfare the sum of $113.14 for the hospital care of his wife.

It is, therefore, the opinion of this Court that claimant is entitled to the sum of $377.86, after deducting the set-off from the value of the ring.

The claim is, therefore, allowed in the amount of $377.86.


author: Fearer, J.

text:
    (No. 4825
    W. H. Brown and Motors Insurance Corporation, Subrogee of W. H. Brown, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1960.

    Traeger, Bolger and Traeger, Attorneys for Claimants.
    Grenville Beardsley, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

Complaint was filed in this case by W. H. Brown and Motors Insurance Corporation, as- subrogee, against respondent.

Respondent not having filed an answer, under Section 11 of the Rules of this Court a general traverse of the allegations of the complaint will be considered filed.

Abstracts, briefs and arguments were waived by this Court. Respondent filed a Departmental Report.

The accident on which this cause of action arose occurred on June 11, 1956. On that date W. H. Brown was the owner and operator of a 1955 Oldsmobile, which he was driving in a northerly direction in the 4400 block on North Western Avenue, a public highway located in the City of Chicago, County of Cook and State of Illinois.

At said time and place aforesaid, a National Guard truck being driven by Karl Brun had been parked on the east side of Western Avenue, while the driver was asking directions from a police officer. As the Brown automobile approached the National Guard truck on the left and rear, the operator of the truck, without making a signal, made a left-hand turn in attempting to make a “U” turn in the center of Western Avenue while the front part of claimant’s automobile was near the front portion of the truck. The truck struck claimant’s automobile on the right-hand side, and damaged it.

The only testimony, which we have in this case, is that of claimant. He was examined by his counsel and by the Commissioner, Herbert G. Immenhausen, as to the facts of said accident.

Claimant’s exhibit No. 1 was a paid repair bill of Sheair Motors Company of Chicago, Illinois in the amount of $320.14.

The Commissioner so found, and there is no question but that the cause of the accident in question, resulting in the damage to claimant’s automobile, was the result of the improper turn made by the National Guard truck driver, Sergeant Brun.

Claimant, W. H. Brown, had a $50.00 deductible policy with Motors Insurance Corporation.

Motors Insurance Corporation paid to Sheair Motors Company the sum of $270.14, and claimant paid the sum of $50.00.

Awards are hereby made as follows:

W. H. Brown, $50.00.

Motors Insurance Corporation, subrogee of W. H. Brown, $270.14.


text:
    (No. 4655
    Marvin Kerr and Motors Insurance Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1960.

      Petition of claimants for rehearing denied April 25, 1960.

    Lansden and Lansden, Attorneys for Claimants.
    Grenville Beardsley, Attorney General; C. Arthur Nebel and William H. South, Assistant Attorneys General, for Respondent.
   Fearer, J.

Marvin Kerr and Motors Insurance Corporation filed their complaint against the State of Illinois on November 9, 1954. Marvin Kerr is seeking to recover $4,000.00 for personal injuries, wrecker expense, loss of earnings, and the deductible portion of his collision policy with Motors Insurance Corporation. Motors Insurance Corporation, under its subrogation agreement with Marvin Kerr, is seeking to recover $530.00.

The claims are an outgrowth of an accident, which occurred on November 11, 1952 at or about-the hour of 10:00 P.M., while claimant, Marvin Kerr, was driving his 1952 Pontiac automobile in a southerly direction on Illinois State Route No. 2, also known as U. S. Route No. 51, south of the city limits of Carbondale, Jackson County, Illinois, at or about one-half mile from said city limits.

The pertinent portions of the record are a verified complaint, transcript of evidence, briefs and arguments of respondent and claimant, including a reply brief of claimant.

No answer was filed by respondent. Therefore, in accordance with Rule 11 of this Court, a general traverse or denial is considered to have been filed.

In the complaint it is alleged as follows:

That at the time and place aforesaid, and at all times hereinbefore and hereinafter mentioned, claimant, Marvin Kerr, was in the exercise of due care and caution for his own safety and the safety of his automobile ;

That the respondent was constructing, completing* and relocating State Route No. 2 to the east and southeast of the original older Route No. 2;

That it was also constructing and completing a curve and approach leading from Route No. 2 in a southeasterly direction to connect it with the highway on the relocation of said Route No. 2;

That there were no warning signs, flares or guard rails where Route No. 2 ceased to continue in its former straight condition, and proceeded in a curve and approach to the east and southeast;

That claimant, Marvin Kerr, while driving in a southerly direction, didn’t know of the change in Route No. 2, or the curve and approach leading from said Route No. 2 and connecting with the highway on the relocation of Route No. 2;

That, while attempting to stay on said curve and approach, he drove his said automobile off of the curve and approach down the embankment and into the low area between the embankment of the relocation of said Route No. 2 and the embankment of the curve and approach.

Respondent was charged with several acts of negligence in sub-paragraphs of the complaint, all of which amounted to the relocation of said highway by respondent, and making the connection therewith without giving adequate warning or providing sufficient lighting or signs warning the traveling public of the change in condition, which was the proximate cause of claimant, Marvin Kerr, running off of said highway and into a tree causing his injuries and the property damage to the automobile, the latter being the basis of the claim of Motors Insurance Corporation.

At the time of the accident Marvin Kerr was selling holiday goods, novelties and articles for the gift trade. Also, he was operating a tavern at Elco, Illinois.

Claimant alleged he sustained injuries to his ribs, back and muscles, and cuts and abrasions, for which he incurred hospital, doctor and nursing bills, as set forth in certain exhibits; also, damage to his automobile, as set forth in certain exhibits.

There is no question but that this section of the highway south of Carbondale was under the jurisdiction of respondent, namely the Department of Public Works and Buildings, acting through the Division of Highways, from the time of its initial construction to the present time.

Prom the Departmental Report it appears that, as of October 22, 1952, traffic on S.B.I. Route No. 2 (marked Route U. S. No. 51) was routed over the following streets in the City "of Carbondale:

Prom north to south — South Illinois Avenue to its intersection with Grand Avenue; west on Grand Avenue to its intersection with South Thompson Street; south on South Thompson Street to the south city limit; thence along a continuation of South Thompson Street, which is the centerline of land sections Nos. 28 and 33, a distance of more than one and one-quarter miles.

On November 20, 1951, the Department of Public Works and Building’s awarded a paving contract to the Triangle Construction Company. The contract bears the designation State Bond Issue Route No. 2, Section 9-1, Jackson County, and represents a relocation of S.B.I. Route No. 2 (marked Route U. S. No. 51) over a distance of 1.54 miles.

The relocation, begins at the intersection of South Illinois Avenue and Grand Avenue in Carbondale, and follows a southerly and southwesterly course to a point of common meeting with the centerline of original S.B.I. Route No. 2 (marked Route U. S. No. 51). The point of common meeting is 1.21 miles south of Grand Avenue, and 1.1 miles south of the south city limit of Carbondale.

Since the angle of intersection of the old and relocated alignments is very small, the Division planned and constructed a connection between the old and new alignments at a point 1,015 feet due north of their common point of meeting. The connection consists of a port-land cement concrete pavement 18 feet in width on a curve having a radius of 150 feet, a length of 185.5 feet, and a grade of 5.8 per cent.

The relocated section of S.B.I. Route No. 2 (marked Route U. S. No. 51) was opened to through traffic on October 23,1952. All route and direction signs and markers had been removed from the old location, and re-erected on the new location before October 23, 1952. The concrete connection between the south end of the old route and the new location was laid on November 3, 1952, and opened to traffic on November 10, 1952. A “stop” sign was erected on the southerly shoulder of the connection near its junction with the new location. The sign faced to the west, and was in place at the time the connection was opened to traffic, as well as when the subject accident occurred.

Claimant, Marvin Kerr, testified that he had not been in Carbondale for five or six months, and was not familiar with the relocation of said highway; that he lived in Elco, Illinois, and that his route in selling novelties usually covered Pulaski and Alexander Counties, but, this being the holiday period, he was making an extra trip coming through Vienna and Marion and over to Carbondale. At the time of the accident he was returning to his home in Elco.

The route, which he followed in coming into Carbon-dale, was across Route No. 13, and after getting into Carbondale he drove on University Avenue. He turned right, and drove down Thompson Street. The street north of University Avenue was Grand Avenue, and he continued on Grand Avenue to Thompson Street, which was known as old Route No. 51. He testified that this was the route, which he usually traveled when going through Carbondale, and that he did not know that the road had been changed, and the new highway completed. While he was driving approximately forty miles an hour, it suddenly appeared to him that there was an open' bridge in front of him. He applied his brakes, and. “scooted” right off of the bank. He further testified that on this particular curve, which he described as a 90 degree curve, there were no signs or signals warning him of the curve, and there were no flares or barricades on this strip of highway before the curve. He didn’t attempt to turn his wheel before making the curve, but he ran straight off of the road up against a tree, which threw him out of his car on the right side.

Claimant called Elza Brantley of Murphysboro, Illinois, who was employed by the Department of Public Safety as a Lieutenant in the State Police, and was in charge of District No. 13. He testified that at the time of the accident he was a State Sergeant, supervising the men in the field, and had made an investigation of this accident. It was his recollection that, at the time the new road was opened, all of the signs were taken down from old Route No. 51, which traveled past Southern Illinois University. They were moved over to the new highway, which had been opened for approximately ten days, and that, when he traveled to the scene of the accident, he traveled the old route, which was the one claimant had taken the night of the accident.

He further testified that, where the old road connected onto the new road, there was a ninety degree curve, that there were no warning signs or protective guard rails whatsoever at the curve where the accident happened warning the motorists traveling on the old route as to the dangerous condition where the connection was made. The only sign, which was in evidence, was a stop sign, which was south of where the accident happened.

The State did not erect barricades at the south edge of the city limits of Carbondale closing off traffic when the new route was opened. The only testimony as to any signs indicating that the road had been opened were in Carbondale, and were testified to by the one witness called by the State, Mr. A. B. Harris of Carbondale, who was a Field Engineer for the Division of Highways. He testified as to the relocation of Route No. 51 around Southern Illinois University. He stated that the new road had been opened on October 23, 1952, and that by the opening of the new road it changed the route traveled through Carbondale from Grand Avenue south. He further testified as to the curve and the condition of the road at the scene where the accident occurred.

This Court has held several times that the State is not an insurer of all people, who travel on its highways, and when unexpected hazards occur, which could not reasonably have been foreseen, recoveries have been denied. Dale Riggins vs. State of Illinois, 21 C.C.R. 434.

We also held in the same case that, where the State is in the process of repairing, removing, or relocating a highway, it is duty bound to use reasonable care in warning the traveling public of a hazard, which it has voluntarily created. (Ibid. p 438.)

Respondent apparently is relying upon the fact that for approximately ten days traffic was re-routed through Carbondale, and that, had claimant followed the routings, which were changed by the relocation of the highway, he would not have been driving on the old road past Southern Illinois University, and would not have been confronted with this hazardous condition, negotiating a ninety degree curve in driving onto the new road.

On the other hand, we have claimant’s testimony that he had not been in Carbondale for several months, and that he had always taken the old' Route No. 51, which took him past Southern Illinois University. He had no warning, and did not have knowledge that the road had been relocated, and was following the route, which he had taken on other occasions. This apparently was true of other persons, who had had similar acch dents at this same curve.

The question has arisen as to the admissibility of certain evidence offered by claimant as to other accidents on the same curve. This evidence was admitted subject to the objection of respondent. Other occurrences at the same location were testified to by Donald Shadowens and Henry Hale, the Assistant Chief of Police of Carbondale, who also investigated this accident, and testified to other accidents occurring on this particular curve during the relocation of the highway.

In the case of Hays vs. Place, 350 Ill. App. 504, 510, “Where issue as to whether defendant has such actual knowledge as to put him on notice of possibility of injury as a result of his actions was pertinent, previous similar occurrences might be shown as evidence of defendant’s knowledge, and absence of prior occurrences, to show his lack of knowledge”.

We believe that the evidence offered was sufficient to put respondent on notice that failure to warn the traveling public on the old highway, while it was still open, did create a hazardous condition, and would subject the traveling public to a serious condition.

As to the action taken in the erection of signs after-the accident in question, we have had occasion to pass on this question before. Bovey vs. State of Illinois, 22 C.C.R. 95.

In the Departmental Report, it is stated that, at the time of the opening of the new road, all direction signs and markers were moved from the old location, and re-erected at the new location.

Respondent is also relying npon the question of contributory negligence in addition to its defense of the relocation and the markings for the relocation of the new highway, but, from examining the testimony and the exhibits offered in evidence, we are of the opinion that claimants have maintained the burden of proving to our satisfaction that Marvin Kerr was free from any contributory negligence. It is our opinion that respondent did not adequately warn traffic traveling on the old route through Carbondale, or within a reasonable distance prior to the connection between the old and the new routes, by placing a curve sign or other signs warning the traffic traveling on said highway of the dangerous curve whereby the connection is made between the two highways. Its failure to provide adequate warning signs or barricades to keep traffic off the old route was the proximate cause of the accident resulting in claimant’s injuries and the damage to his automobile.

The State in relocating, repairing or changing a highway, where such action creates a hazardous condition, is bound to use reasonable care in warning the traveling public of the hazard, which it has voluntarily created. Riggins vs. State of Illinois, 21 C.C.R. 434, 438.

As to the question of damages to be awarded the Motors Insurance Corporation by reason of its subrogation, it was stipulated that the cost of repair to the automobile was $577.50, that Marvin Kerr had a $50.00 deductible policy, and that he paid $50.00, and his insurance company paid $527.50.

Claimant, Marvin Kerr, offered and,, there were received in evidence, exhibits in the following amounts:

Exhibit No. 1 — Bill of Ellis R. Crandle, M.D___________^----------------$16.00

Exhibit No. 4 — Holden Hospital ------------------------------------------------- 48,15

Exhibit No. 5 — Ryan Funeral Home, ambulance service----------------- 15.00

Exhibit No. 6 — St. Mary’s Hospital, Cairo, Illinois, x-rays----------------- 25.00

Exhibit No. 7 — Dr. James K. Rosson, Tamms, Illinois--------------- 25.00

Exhibit No. 8 — Holden Hospital --------_---------------------------...------------ 15.00

Marvin Kerr testified that at the time of the accident he was operating a tavern in Elco, Illinois. While he was being treated for his injuries, it was necessary for him to obtain additional help in his tavern. He employed one Shirley Cauble for a period of eight weeks at $25.00 a week, or a total amount of $200.00.

He testified further that he had a loss of earnings in his novelty business through the holiday season for which he is claiming the sum of $600.00. The testimony in this regard, even though not objected to, is speculative, and' claimant has not laid the necessary foundation for the offering and proving of loss of earnings from the novelty business.

As to the claim for the loss of the use of his car for two months, claimant is asking $120.00. There is no-showing in the evidence that he did rent another vehicle-for the period of time that he was deprived of its use. Therefore, he did not maintain the burden of proof in this regard, as he would have had to show that after the holiday season he used the automobile in his business;, that his automobile was not available for so many days; that during said period of time he rented another automobile, and paid a certain sum per day or week for its. use in his business. Since claimant has failed to maintain the burden of proof as to damages for the loss of' the use of the car, this Court cannot consider the item, of $120.00.

As to Marvin Kerr’s injuries and the length of time Ihe was absent from his employment, Dr. Ellis R. Crandle •of Carbondale, Illinois was called to testify. He testified that he was summoned to the Holden Hospital on .November 11, 1952, where he made an examination of Marvin Kerr. Mr. Kerr was complaining of pain in his right chest. Dr. Crandle testified that Mr. Kerr was put to bed on November 12, 1952. X-Rays, which were made, showed that he had a double fracture of the sixth rib, a fracture of the 7th rib, and a questionable fracture of the fifth rib on the right side. Other injuries consisted primarily of multiple abrasions and contusions. His pain was confined mostly to the right side of his chest. He was discharged from the hospital on November 14, 1952. The treatment given him was bed rest for three days, sedatives, and a tight binder to control the movement of the chest. The Doctor testified that he had not examined him since the date of the accident, which was the date of the first examination, but that he was x-rayed on September 26, 1955. The report of the radiologist at that time showed that there was a healed fracture of the sixth and seventh ribs in good position and alignment. The right thoracic cage showed a healed fracture of the fifth, sixth and seventh ribs in the posterior axillary lines, union was solid. There was no active destructive change, or evidence of recent fracture. There was a slight thickening of the pleura in the right lateral chest, which was most likely secondary to the old fracture. Dr. Crandle further testified that Mr. Kerr had made a maximum recovery from the accident.

This is the only medical testimony, which we have. Marvin Kerr testified that, when he got home, he called his family doctor, and that, after seeing him, he wore a harness to support his back and ribs.

There is nothing in the record as to the ■ length of time that he was away from his employment, other than the testimony that he employed Shirley Cauble for eight weeks to assist him in his tavern, for which he paid $200.00.

It is, therefore, the opinion of this Court that Motors Insurance Corporation should recover of and from respondent the sum of $527.50, and that Marvin Kerr be awarded the sum of $1,100.00.

Supplemental Opinion

This cause now comes on before the Court on a petition for rehearing, which was filed on February 24, 1960.

The petition requests a rehearing on the claim of Marvin Kerr, and pertains only to the extent of the award- given to Marvin Kerr by this Court.

The Court, in arriving at the amount of the award, took into consideration the nature and extent of Marvin Kerr’s injuries based upon the only medical testimony that was offered, and upon the testimony of claimant as to his injuries, and giving to it the probative consideration, which we believed it was entitled to.

From the medical testimony, there is no question of permanency. The actual medical bills were very small. The only other testimony we had was that of Marvin Kerr himself, and, based upon all of this testimony, we considered that the award entered was adequate.

As to loss of earnings, we only considered that evidence, which we believed to be competent. In order to have made a larger award, we would have had to do so on evidence, which, in our opinion, was speculative, uncertain and remote, and not commensurate with the damages claimed by claimant.

Inasmuch as this Court not only passes upon questions of law in each individual case, but is a trier of the facts, and sits in the place of a jury, we reserve the right to give the evidence offered in each individual case that •consideration, which we believe it is entitled to receive, and to make our award accordingly.

It is, therefore, the order of this Court that the petition for rehearing be denied.


author: TOLSON, C. J.

text:
    (No. 4881
    Sankey Brothers, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1960.

    Gillespie, Burke and Gillespie, Attorneys for Claimant.
    Grenville Beardsley, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   TOLSON, C. J.

On August 12,1959, Sankey Brothers, Inc., A Corporation, filed its complaint seeking an award of $2,000.00 for the balance due under a certain contract with respondent dated June 29, 1955. A stipulation of facts was entered into between claimant and respondent on December 11, 1959, which is hereinafter set forth in detail, and, on December 21, 1959, claimant and respondent entered into a joint motion to waive briefs, which motion was allowed.

The stipulation of facts appears in the following words and figures:

“(1) Verified complaint of claimant, and exhibits attached thereto.
(2) That claimant is an Illinois corporation, which was employed by the State of Illinois, acting through the Department of Public Works and Buildings on June 29, 1955, to furnish all labor, materials and equipment, and to, complete all work necessary for the site development of two half-blocks north and south of the new State Office Building at Springfield, Illinois.
(3) That pursuant to said agreement of employment a written contract was entered into by and between claimant and the State of Illinois on June 29, 1955, a true copy of which is attached to the complaint herein as claimant’s exhibit A.
(4) That claimant completed the site development pursuant to the terms of said contract.
(5) That the amount owed by the State of Illinois to claimant, pursuant to said contract, after allowing all just credits, deductions and set-offs is $2,000.00, which sum represents the remaining unpaid balance due and owing claimant under said contract.
(6) That claimant has demanded of the State of Illinois payment of the sum of $2,000.00, and the State of Illinois through J. N. Gaunt, Chief of Construction, advised claimant on March 17, 1959 that the sum of $2,000.00 was not reappropriated by the Legislature of the State of Illinois, and that said contract was considered closed by the construction office of the Department of Public Works and Buildings; that a true and correct copy of said letter is attached to the complaint herein, as claimant’s exhibit B.
(7) That claimant filed an Application For a Certificate of Payment with the Division of Architecture and Engineering of the Department of Public Works and Buildings for the State of Illinois for the sum of $2,000.00, a true copy of which is attached to the complaint herein as claimant’s exhibit C; that the Division of Architecture and Engineering acknowledged receipt of said certificate, and further acknowledged that said amount of $2,000.00 was due and owing from the State of Illinois to claimant as evidenced by a letter attached to the complaint as claimant’s exhibit D.”

The Court, having considered the stipulation, finds that claimant is entitled to an award.

An award is, therefore, made to Samkey Brothers, Inc., A Corporation, in the amount of $2,000.00.


author: Tolson, C. J.

text:
    (No. 4891
    Illinois Water Service Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1960.

      Adsit, Thompson, Hebe and Strock, Attorneys for Claimant.
    Grenville Beardsley, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Illinois Water Service Company, A Corporation, filed its complaint seeking an award for water service furnished to the Illinois State Prison at Pontiac, Illinois.

It appears from the pleadings that the Water Company made an erroneous charge for service for the months of June, 1958 to June, 1959 to its loss in the amount of $561.60.

A Departmental Report, which was filed herein, acknowledged the receipt of the water service and the correctness of the amount due. It further recites that, though the appropriation for contractual services lapsed on September 30, 1959, additional funds were available . from the appropriation for contingencies to meet this bill.

A stipulation was entered into on March 8, 1960 between claimant and respondent acknowledging the validity of the claim and waiving the filing of brief and argument.

The Court, therefore, finds that claimant is entitled to an award in the amount of $561.60, and an award is so ordered.


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

      Opinion filed June 17, 1960.
    John W. Preihs and Edward Benbcki, Attorneys for Claimant.
    William L. Child, Attorney General; William H. Sohth, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant was injured on Februry 2, 1936 in an accident, which arose out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and. Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State of Illinois, 11 C.C.R. 365, in which an award of $5,500.00 was made to claimant for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services, expended or incurred to and including October 22, 1940, and an annual life pension of $660.00.

Successive awards have been made by the Court from 1942 to and including October 31, 1959, and the matter is now before the Court for an award to and including April 30, 1960.

The record consists of a verified petition, supported by original receipts, and joint motion of claimant and respondent for leave to waive the filing of briefs and argu ments, which has been allowed.

The petition alleges that claimant is still bedfast, and requires daily medical and nursing care. It further discloses that claimant has incurred expenses in the following amounts:

1. Nursing expenses .......................... ......... _$ 685.87

818.50

244.42

802.00

_________ 75.00

6. Miscellaneous expenses _ ... ..... 162.78

From the previous record of this case, it appears that the Court has reserved jurisdiction of same from year to year to determine the future needs of claimant for additional care, and it further appears that the amounts involved were necessarily expended for the medical care of claimant.

An award is, therefore, made to claimant for medical and nursing services, and other expenses, from November 1, 1959 to and including April 30, 1960 in the amount of $2,288.57.

The Court reserves jurisdiction for further determination of claimant’s need for additional medical care.


author: SCHUMAN, C. J.

text:
    (No. 4238
    Kenneth L. Martin, Et Al, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    David V. Lansden and Julian Johnson, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter and C. Arthur Nebel, Assistant Attorneys General, for Respondent.
   SCHUMAN, C. J.

This case was heard on the amended motion to dismiss filed by respondent.

The motion is predicated on Section 45 of the Civil Practice Act, and claims that the complaint on its face shows it is insufficient in law to justify an award.

The first point raised by the motion is that wild geese, as a matter of law, are not in possession or control of respondent. In support of this they cite the case of Missouri v. Holland, 252 U. S. 416. In that case the State of Missouri sought to enjoin Federal Officials from enforcing the regulations under the Migratory Bird Treaty Act, and claimed exclusive authority over migratory birds. The court in its opinion said:

“No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers.”

Indicating as between the State and its citizens, it may regulate the killing of birds.

Section 154 of the Game Code of Illinois, being Chapter 61, Smith Hurd Revised Statutes, provides as follows:

“The ownership of and title to all wild birds and wild animals within the jurisdiction of the State are hereby declared to be in the State, and no wild birds or wild animals shall be taken or killed, in any manner or at any time, unless the person or persons so taking or killing the same shall consent that the title thereto shall be and remain in the State for the purpose of regulating the taking, killing, possession, use, sale and transportation thereof, after such taking or killing, as hereinafter set forth. The taking or killing of wild birds or wild animals at any time, in any manner, and by any person, shall be deemed a consent on the part of such person that the title to such wild birds or wild animals shall remain in the State for the purpose of regulating the possession, use, sale and transportation thereof.”

For the purpose of passing on this motion, the Court concludes that as to claimants the ownership of and title to wild geese are in the State of Illinois.

Under point 2 it is contended that the maintaining of the Horseshoe Lake State Game Preserve was a valid exercise of the police power for which the State is not liable to respond in damages. In support of this respondent predicates its position on general regulation being under the police power. However, respondent states that the Department of Conservation is given authority to acquire land by Section 3-C of the Game Code, which provides:

“C. The Department may establish and maintain units upon any lands owned or leased by the State of Illinois, with the consent and approval of the State Department or agency having jurisdiction over such lands, for the purpose of breeding and propagating wild birds and wild animals.
“The Department shall have the power and authority to select and purchase, or lease, receive donation or acquire, in accordance with the laws relating to eminent domain:
(a) Suitable lands for the breeding,'hatching, propagation and conservation of wild birds or wild animals, or
(b) Lands or lands and waters to be used as public shooting and fishing grounds.”

In order to establish the preserve the State had to do it by purchase, gift or by exercising eminent domain. Respondent cites numerous Illinois cases, which are cases stating that preservation of game is a police regulation. To this there can be no argument. Respondent then cites Bailey v. Holland, 126 Fed. 2d 317 as authority for this point. However the court on page 324 said:

“If the Government wishes to do more in the way of protecting migratory birds than prohibiting their slaughter, e.g., erect improvements to lessen the dangers resulting from the drainage of marshy areas, it must acquire some proprietory interest in the areas suitable for such uses. It was to meet this that Congress enacted the Migratory Bird Conservation Act. Land purchased under this Act becomes an ‘inviolate sanctuary’ over which the Government acquires complete dominion, so that it can erect buildings, fences, ditches, dams; or do any other affirmative acts upon the property for the general welfare of the birds. And in order to make this refuge more effective, the Secretary may prohibit hunting in that immediate vicinity. Merely because the government purchases certain lands in order to do more than prohibit hunting, it does not follow that compensation must be paid for all land closed to hunting.
“The distinction between a ‘closed area’ which may well embrace privately owned lands, and a federally owned ‘inviolate sanctuary’ seems clear. Hence the regulation establishing the closed area in question did not extend the boundaries of the refuge proper; nor did this regulation involve any invasion or taking of appellee’s land.
“In this case owners of land stated only value of ground was in utilization for shooting migratory waterfowl, otherwise properties were practically valueless.”

This case holds that the government in order to maintain a refuge must obtain a proprietory interest in the ground, which it could only do by purchase, eminent domain, etc.

For this reason the State of Illinois in acquiring the game preserve acquired proprietory interest in the land, and, therefore, the establishment of the preserve was not under police regulations, nor is its maintenance.

The Court concludes that the State could be held responsible for negligence in the operation of the preserve where damages occur to private property from said negligence.

Under point 3 respondent contends the complaint fails to allege facts sufficient to show that respondent was under any duty to protect claimants from the actions of wild geese, or that the State was negligent, or that the State was liable to claimants by any alleged action or non-action of its employees. Under this point they cite numerous cases, all of which, in arriving at the conclusion that the State can regulate game, state that the owner of private property may kill predatory game that is damaging his property. Respondent states that claimants had the right to protect their property. However, under See. 28, Chapter 61, of the Game Code, which provides:

“The owners and tenants of farm lands and their children actually residing on such lands shall have the right to hunt, take and kill game, wild animals, wild fowls and birds of the kind permitted to be hunted, taken or killed by the provisions hereof, upon such lands and waters thereon, of which they, or their parents, are the bona fide owners or tenants, during the seasons when it is lawful so to do, without procuring hunting licenses.
“The owners and tenants of lands may destroy any wild animal or wild bird, other than a game bird, when such wild animal or wild bird is destroying property upon his or her land, but no poison or poisonous substance shall be used as a means of destroying such wild animal or bird.”;

and Section 184, which provides:

“The owners and tenants of lands may destroy any wild bird or wild animal, other than a game bird or migratory game bird, when such wild bird or wild animal is destroying property upon his or her land, but no poison or poisonous substance shall be used, except chemicals may be used by. owners or tenants of land on which levees and dams are located, by obtaining written permission from the Department.”;

and Section 155, which provides in part:

“MIGRATORY GAME BIRDS — Waterfowl, including brant, wild ducks, geese, and swans, Anatidae; Cranes, including little brown, sandhill, and whooping cranes, Gmidae; Rails, including coots, gallinules, and sora and other rails, Rallidae; Shore birds, including avocets, curlews, dowitchers, godwits, knots, oyster catchers, phalaropes, plovers, sandpipers, snipe, stilts, surf birds, tumstones, willet, woodcock, and yellow legs, Limicolae; Pigeons, including doves and wild pigeons, Columbidae. GAME ANIMALS — Cottontail rabbit, Sylvilagus floridanus; swamp rabbit, Sylvilagus aquaticus; Jack rabbit, Lepus Townsendii; Fox squirrel, Sciurus niger; Gray or cat squirrel, Sciurus carolinensis; Whitetail deer, Odocoileus virginianus. FUR-BEARING ANIMALS — Opossum, Didelphis virginiana; Raccoon, Procyon lotor; Mink, Mustek visor; Otter, Lutra Canadensis; Skunk, Mephitis mephitis; Muskrat, Ondatra Zibethicus; Beaver, Castor canadensis; Red fox, Vulpes fulva; Badger, Taxidea Taxus.
“It is unlawful to take any said wild birds and parts thereof (their nests and eggs), and wild animals and parts thereof, including their green hides, with such devices, during the protected seasons and in such manner, as defined by this Act.”,

claimants are absolutely prohibited from doing the very thing the State contends they can do.

In the case of Platt v. Philbrick, 47 P. (2d) 302, (Calif.) appeared the following:

“Respondent argued that provision for compensation controls only in case where interest is taken in the land by the State in which case the officers have the right to occupy the property to propagate, feed, and protect the fish and game.
“Appellant contended Section permitting ‘any lawful occupant of privately owned lands, etc.’ may take, hunt, or kill on such lands predatory or destructive birds or mammals, (this in closed area).
“Court held this question could not be raised by owners, but only against those discriminated against. (304).”

The court on page 304 said:

“The purpose of this exception to the general rule of a ‘closed season’ within these refuges is apparent. The legislature sought to meet the objection to which appellant makes to the legislation as a whole — that the effect of the ‘closed season’ -would be that predatory game would be permitted to roam within the refuge at will and cause damage to the gardens and crops of private landowners. (Emphasis supplied). In giving permission to lawful occupant of lands within the refuge to protect his property against invasion, the Section is a reasonable exercise of the legislative authority to regulate the protection of game within the respective districts. The Section docs not permit such persons to hunt and kill game at will throughout the refuge as argued by appellant. The privilege is limited to the ‘privately owned lands’ upon which each lawful occupant, or his employees, may take, hunt, or kill ‘predatory or destructive birds or mammals’.”

The Court concludes that the claimants being powerless under the Statute to protect their property from wild geese would have a cause of action for negligence causing damages to their property.

The very effect of these statutory provisions amounts to an extension of Horseshoe Lake Preserve, by preventing claimants from protecting their property, and without acquiring additional rights by the payment of just compensation.

As to point 4 of the motion, the Court feels sufficient facts are set forth in the motion to state a cause of action.

As to point 5, the Court can see no basis for such contentions. If a continuing trespass, the Court would have jurisdiction every time damages occur.

The Court has read both of the cases in the Federal court, and can see no basis that the cause of actions were in any way similar.

Under the original Migratory Bird Treaty Act the Federal Government could not acquire lands to establish refuges. The amendment to the Act in 1929 gave the Government power to do so. Bailey v. Holland, supra, the basis of the holding, held that regulations closing 5,000 acres surrounding the refuge made it more effective, but drew a clear distinction in the acquisition of the refuge, and regulations under the treaty.

The Court, therefore, concludes that sufficient facts are stated in the amended complaint to state a cause of action, and the motion to dismiss is overruled.

Judge Lansden did not participate in the consideration and determination of this case.


author: Tolson, C. J. Per Curiam:

text:
    (Nos. 4238, 4392, 4399 and 4486—Consolidated
    Kenneth L. Martin, Et Al, A. A. Seibert, Et Al, Gerald Miller, Et Al, and Henry A. Shumaker, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1960.

      Petition of Claimants for Rehearing denied November 16, 1960.

      Lansden and Lansden, Peyton Berbling, and J. Kelly Smith, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

The claims of certain landowners, tenants, or both, for the recovery of damages occasioned by the alleged neglect of the State of Illinois in its operation of a game preserve, known as Horseshoe Lake, in Alexander County, Illinois, are involved in these consolidated cases.

The complaints, as amended, charge the State in the following terms:

That the State of Illinois, through its Department of Conservation, owns and operates Horseshoe Lake Game Preserve.
That respondent, by virtue of Chap. 61, Sec. 154, Ill. Rev. Stats., has ownership and title to all wild birds.
That respondent, in the operation of the preserve, and in conjunction with agents of the United States of America, has encouraged the concentration of migratory water fowl in the surrounding area.
That claimants were free from contributory negligence, and exercised due care for the safety of their property and crops.
That claimants, naming them individually, were tenants, owners, or both, on lands surrounding the preserve, and during the years of 1947 and 1948 raised substantial amounts of com, beans, and other crops.
That commencing on November 1, 1947, and continuing to the date of these suits, substantial quantities of com, beans, and other crops were destroyed by wild geese.
That respondent, through its agents:
(a) Was negligent in failing to protect plaintiff’s crops.
(b) Created a nuisance, which caused loss of crops.
(c) Knew of the predatory nature of wild geese, and did nothing about it.
(d) Is an insurer of plaintiffs’ crops from the action of the geese.
(e) By non-action cannot avoid liability.
(f) In 1947 and 1948, by the use of bombs, stirred up the geese, and caused them to enter the fields of claimants.
(g) By permitting geese to damage crops has interfered with the exclusive occupation and enjoyment of plaintiffs’ lands.
(h) Has title to the geese, and is responsible for any depredation.
(i) By permitting geese to congregate in vast numbers, and knowing their dangerous propensities, has negligently caused damages.
(j) By negligently concentrating the geese at Horseshoe Lake, and thereafter failing to feed them, has failed to perform the duty owed plaintiffs.
(k) As an owner of wild geese, owed the duty of protecting innocent individuals from damages.
(l) Trapped, and thereafter liberated geese, which came upon the lands of claimants after October 31, 1947, and damaged crops.
(m) On October 1, 1947, knew:
The habits of the geese to concentrate between September and April on Horseshoe Lake, with the heaviest concentration in October through December.
The population of the flock was approximately 30,000, which thereafter did not decrease.
Few fowl passed over Alexander County without settling on the preserve.
Horseshoe Lake was too small for feeding and resting that number of birds.
The fowl flew directly from Horseshoe Lake to the lands of the claimants.
The number of fowl on claimants’ lands ranged from a few to 25,000.
That the migratory water fowl creating the damages, as alleged, came from Horseshoe Lake.
That one or all of the acts alleged occurred within two years prior to the filing of the complaints.
That respondent was negligent in failing to raise or provide sufficient food to feed the geese, and in its operation of the Horseshoe Lake Game Preserve.
That respondent’s action or non-action was the proximate cause of injuries.

The complaints then conclude with a prayer for relief as to the several claimants for losses occurring in the seasons of 1947-1948 and 1948-1949.

These cases have been in Court for several years. The transcript of evidence is more than 800 pages in length, and considerable time was taken by the parties to make corrections therein. The facts involved are both novel and unusual, and the parties, by their pleadings, have presented difficult questions of law and construction of statutes.

As a background to the problem, it is to be noted that, as far back as history records, certain birds found on the Continent of North America have migrated each year from Canada to Central America. From a map introduced in evidence, it appears that there are four flight patterns across the United States, which are literally highways for migratory birds, and of equal interest is the fact that, once a pattern is established, each succeeding generation of birds will follow his ancestral course to the exclusion of all others.

We are primarily concerned with the Mississippi Flyway, as Horseshoe Lake is a feeding and resting area directly in its path. In the early history of the United States, countless thousands of geese and ducks w-ere to-be found in this area, and it seemed as though the supply was inexhaustible. However, with an increase in the number of hunters and improved firearms, it w-as soon demonstrated that Canadian geese would become extinct unless regulations were established for their protection.

Since uniformity of regulations involved not only the United States, but also our neighbors, Canada and Mexico, the situation was resolved by way of treaty. On December 8, 1916, a treaty between the United States and Great Britain was proclaimed, which treaty was, on February 17, 1936, entered into by the United Mexican States. It recited that many species of birds (not limited to ducks and geese) in their annual migration were in danger of extermination for lack of adequate protection.

The act provided for closed seasons and other forms of protection, and directed each country to provide the necessary measures, by legislative action, to carry out the terms of the treaty. Congress thereafter enacted the Migratory Bird Treaty Act of June 3, 1918. This law prohibited the taking, killing or possession of migratory birds, except as permitted by regulation, and provided severe penalties for violation. The Secretary of Interior was directed to implement the act by regulations, which would become effective when approved by the President.

Since the treaty is of great significance in these cases, it is important to consider the rule established in the case of Missouri vs. Holland, 252 U.S. 416. The State of Missouri challenged the constitutionality of the Migratory Bird Treaty Act of 1918 by seeking an injunction against a federal game warden from enforcing the act. The State contended that under the Tenth Amendment “Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to its people.” The State of Missouri took the position that it had the exclusive right to legislate concerning water fowl within its territorial limits, and, therefore, federal legislation was unconstitutional.

Justice Holmes, in his opinion, pointed out that under Art. II, Sec. 2, of the Constitution, the power to make treaties is expressly delegated to the President, by and with the consent of the Senate; and, further, under Art. VI such treaties, together with the Constitution and laws of the United States made in pursuance thereof, are declared to be the supreme law of the land. He concluded by stating that, if the treaty of 1916 is valid, there can be no dispute about the validity of the Migratory Bird Act of 1918, as a necessary means to execute the powers of government.

The opinion also stated that there is no doubt but what a State may regulate the killing of birds by its own inhabitants, but it does not follow that its authority is exclusive or paramount. Valid treaties are binding upon a State. The subject matter (birds) is only transitory within a State, and has no permanent habitat therein. But for the treaty, there soon might have been no birds for any power to deal with. (Decree affirmed.)

With this understanding of the national and international policy of protecting migratory birds, we will now consider the activity of the State of Illinois in this regard.

Alexander County is bounded on the west by the Mississippi River. To the east thereof prior to 1928 was an area of lowlands and sloughs, which overflowed in the spring due to its proximity to the river and island. It was a natural habitat for ducks and geese for many years.

In 1928, the State of Illinois purchased about 3,100 acres in this area, and built a dam to impound water and create an artificial lake, now known as Horseshoe Lake. An irregular area in the form of a horseshoe created an island containing approximately 1,100 acres, and the whole area was then designated as Horseshoe Lake Game Preserve.

The island was cultivated by the Department of Conservation for food for the geese, which assembled there, and over the years the preserve became a haven for the feeding and resting of game birds. As one witness testified, Horseshoe Lake Game Preserve had the largest concentration of wild Canadian geese in the world. As respondent has most strongly pointed out, this was an economic blessing to the farmers and property owners in a surrounding area of five or more miles, as gun clubs and hunting rental zones were established to provide shooting facilities. Farmers and landowners thus had a second money crop, and were not limited to the usual hazards of farming in the area. It became such a success as a hunter’s paradise that the Canadian geese were threatened with extinction.

On October 1, 1947, the President of the United States signed proclamation No. 2748, which prohibited the hunting of all wild geese in a designated area surrounding Horseshoe Lake Game Preserve, which included the lands of all claimants, as well as many others. At or about the same time the Governor of the State of Illinois joined in a supporting proclamation. As a matter of fact, this was a needless gesture, as the President’s proclamation alone would have stopped all hunting. (Missouri vs. Holland.)

This was a tremendous economic blow to the landowners, as it shut off all revenue from the use of their hunting facilities; and, at the same time, it generated a new problem, which is the subject matter of these claims.

It took just a short time for the remaining geese to discover that they could forage for miles with complete immunity. The food supply, provided by the State Department of Conservation, was soon exhausted. As one witness testified, the State had food for about sixteen days. Thereafter the geese moved in on the lands of claimants, much like a swarm of locusts, and completely destroyed their crops.

One might assume at this point, that owners and tenant farmers would have an inherent right to use such force, i.e., guns, etc., to drive away or kill, if necessary, any geese damaging their crops. As a matter of fact, the proclamation of October 1, 1947 flatly prohibited the killing of geese under penalty of law. Agents from the Department of Conservation and owners of the land made futile attempts to keep the geese moving by aerial bombs and other artificial devices, but the record is clear that all such attempts ended in failure, and the geese proceeded to strip the farms of their crops.

Some of the claimants, acting under the belief that their losses were occasioned by the Presidential proclamation, filed suits in the federal courts for relief. Two of the cases appear to express the attitude of the Federal Government in the matter, and are set forth briefly.

In Lansden, Et Al vs. Hart, 168 F. (2d) 409, plaintiffs, as landowners, owners of lease holds, and operators of hunting clubs, brought action to enjoin Federal and State officials from enforcing the proclamation of the President and Governor. The complaints stated that on October 1, 1947, the President of the United States, pursuant to the provisions of the Migratory Bird Treaty Act, signed a proclamation prohibiting the hunting of all wild geese in an area of 20,000 acres surrounding Horseshoe Lake. The Governor of Illinois signed a similar proclamation. Plaintiffs alleged irreparable damages. They urged that such actions were arbitrary and capricious, and that the Governor’s proclamation violated the Federal and State Constitutions.

At the hearing before the district court for a preliminary injunction, the court found that numerous hearings had been held by the Department of Interior regarding the increase and decrease of the flocks, that certain plaintiffs had attended such hearings, and petitions had been filed by the attorneys for said plaintiffs. The district judge denied the motion for an injunction.

On appeal, the Circuit Court of Appeals pointed out that the Migratory Bird Treaty Act provided that, unless permitted by regulations, it was unlawful to hunt and kill migratory birds; that proclamation No. 2748 was a proper exercise of the administrative discretion vested in the Secretary of Interior and the President; that in order to carry out the treaty, the Secretary was authorized to determine when and to what extent, if at all, hunting would be allowed, and to adopt suitable regulations; that both proclamations were neither unreasonable nor capricious, but were justified by the facts; that the Governor’s proclamation does not violate the Federal or State Constitution, and was authorized by Sec. 3 of the Game Code of Illinois; and, that plaintiffs have no property rights in live migratory birds, as permission to hunt, given by Federal and State regulations, is not the grant of a property right, but is the grant of a privilege. A rehearing in this case was denied on June 24, 1948.

In the cases of Sickman, Et Al vs. United States, and Ryal vs. United States, 184 Fed. (2d) 616, plaintiffs in three suits, as owners or tenants on farms, brought action under the Federal Tort Claims Act seeking to recover damages in the amount of $26,500.00 for damages to crops destroyed in 1946-1947 by migratory geese. The trial court sustained a motion to dismiss, and plaintiffs elected to stand on the pleadings.

The complaints alleged:

(a) Defendant was negligent in failing to protect plaintiffs’ crops.
(b) Defendant created a nuisance by which plaintiffs’ crops were destroyed.
(c) Defendant, knowing the predatory nature of geese, failed to protect plaintiffs’ crops.
(d) Defendant is an insurer of plaintiffs’ crops.
(e) Defendant cannot avoid liability by non-action.
(f) Defendant, by permitting the geese to destroy said crops, interfered with plaintiffs’ exclusive enjoyment of their land.
(g) Defendant, by stirring up the geese, caused damages that would not otherwise have happened.
(h) Defendant, by having geese in its possession and control, is responsible for depredation.
(i) By permitting geese to congregate in the preserve, and knowing their dangerous propensities, defendant negligently injured plaintiffs.
(j) By neglecting to concentrate the geese at Horseshoe Lake, or other areas, defendant failed to perform the duty owed plaintiffs.
(k) When geese are in the United States, the United States is the owner and has possession, or is the trustee for the parties to the treaty.

The court discussed the pertinent sections of the Federal Tort Claims Act, which waive immunity of the sovereign. It cited 28 U.S.C.A. Secs. 1346(b) and 2674, which read as follows:

Sec. 1346(b): “Subject to the provisions of Chap. 173 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
Sec. 2674: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

The court held that the United States, considered as a private person, did not have ownership, control or possession of these wild geese. Further, that a private person could not be held liable for the trespass of an animal, which is firae naturae. On the merits, the court pointed out that it did not believe the complaints stated claims for which relief could be granted.

On the subject of jurisdiction, the court cited Sec. 2680(a) of the Federal Tort Claims Act, which is as follows:

“The provisions of this Chap, and Sec. 1346(b) of this title shall not apply to:
'(a) Any claim based upon an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused.’ ”

The court concluded its opinion stating that it believed the allegations in the complaint fell within the provisions of the exceptions. It cited the case of Lansden vs. Hart as to the authority for a discretionary act by the Secretary of Interior. The decree was affirmed.

There are many other federal cases involving this subject matter, and, without exception, they hold that the United States claims paramount authority over the respective States in protecting migratory birds. Of equal importance, the decisions have denied compensation to all claimants, though injuries were quite apparent.

As to the complaints before this Court, on November 29,1949 respondent filed a motion to strike these amended complaints, which motion was denied on December 15, 1950 by Judge Schuman, a member of this Court at the time. Counsel for claimants contend that all matters raised by said motion have been resolved, and may not further be inquired into by the Court in arriving at its decision.

The multiple complaints, amendments, answers and motions in these cases are voluminous. To add to the complexity, the testimony was heard in part by three Commissioners. This Court heard lengthy oral arguments covering facts and law. To render a decision, it believes it must consider all matters before it, and, therefore, concludes it is not bound by the order of December 15, 1950 in its entirety, but will consider the order, together with all other matters pertaining to the cases.

Attention is directed to Rule 25 of the Court of Claims, which provides for rehearings. Upon an adverse decision, respondent could, by motion, point out matters overlooked or misapprehended, and the original briefs, etc., would stand as the files in the case. The Court of necessity would be obliged to review all matters in order to rule on the motion.

The testimony in these cases clearly establishes that claimants suffered great monetary losses. Respondent has not disputed seriously the amounts claimed by the various claimants, but contends that the losses were occasioned by proclamation No. 2748, which was signed by the President on October 1, 1947. It prohibited the hunting of wild geese in a designated area surrounding Horseshoe Lake Game Preserve, which included the lands of all claimants, as well as many others.

Respondent further contends that the supporting proclamation, which was signed by the Governor of the State of Illinois, was for all practical purposes an empty gesture, as the Presidential proclamation standing alone, by reason of paramount jurisdiction (Missouri vs. Holland), would have accomplished the same results.

Respondent finally contends that in any event, according to law, injuries received under these facts are not compensable.

Cases from Illinois and other jurisdictions seem to establish that a State in its sovereign capacity may pass legislation protecting wild life, even though an individual may suffer losses, and, further, that such losses are not compensable.

The leading case in the United States in support of the above rule, and cited in other jurisdictions, is Barrett vs. State, 220 N.Y. 423. In that case, Barrett, a landowner, had secured an award in the amount of $1,900.00 for trees destroyed by beavers. The record disclosed that the State had purchased twenty-one beavers, and had released them in certain areas near claimant’s land. Because of the threat of complete extermination, the State had undertaken to afford the beavers complete protection by having no open seasons.

On appeal, three propositions were submitted: (1) The State may not protect, under its police power, an animal, such as a beaver, which is known to be destructive; (2) The law of 1904 prohibits claimants from protecting their property, and is, therefore, an unreasonable exercise of police power; (3) The State, having actual possession of the beavers, and thereafter freeing them with knowledge of their natural propensities to destroy trees, is liable in damages.

In rendering a decision, the court held that the State is owner in its sovereign capacity, and that the protection and preservation of game is found in all civilized countries. The court stated that, whenever protection is accorded, harm may be done to an individual, and in certain cases the Legislature may be mistaken, and do more harm than good, but this is within its discretion, and not to be reviewed by it. Further, the court held that police power is not limited to guarding the physical or material interests of its citizens — their moral and intellectual interests must also be considered.

The court pointed out that claimants could have enclosed their lands with fences, or driven the beavers away, as the sole object of the State’s action was the protection of the beavers.

As to the possession and liberation of the beavers, the court acknowledged that mistakes have been made. It pointed out that the rabbit in Australia and the mongoose in the West Indies have become pests, yet governments have made these experiments in the belief that the public good would be promoted. Whether a success or failure, such attempts are well within governmental powers.

With reference to liability, the court stated that it was true that one, who keeps a wild animal in captivity, is liable at his peril for damages. It, however, hastened to add that it is not true that, when an individual is liable for a certain act, the State is liable for the same act. In performing governmental functions, as involved in this case, the court pointed out that the State was acting as a trustee for the people, and was not liable.

The rule in the Barrett case was also followed in Corron vs. State, 10 N.Y.S. (2d) 960 (destruction of orchards by rabbits); Anthony vs. State, 122 N.Y.S. (2d) 830 (protection of deer running at large on highways); and, Geer vs. Connecticut, 161 U.S. 619 (State Game laws alleged to violate Interstate Commerce Law).

Some of the cases, which have been passed upon by our courts in construing the provisions of the Fish and Game Code of the State of Illinois are Magner vs. The People, 97 Ill. 320 (conviction affirmed for selling quail out of season, though purchased in another State); Parker vs. The People, 111 Ill. 581 (conviction affirmed for maintaining a dam, which obstructed the passage of fish in the river); Bridges vs. The People, 142 Ill. 30 (conviction affirmed for seining fish on a private lake); Diekman vs. The People, 285 Ill. 97 (conviction affirmed for fishing except with hook and line); and, Walton vs. The People, 314 Ill. 45 (conviction affirmed regardless of defendant’s plea that he was a commercial fisherman, and was deprived of his property without due process of law). While they are penal in nature, it is of interest to note the reason for the rule. The court in its opinion in Bridges vs. The People, 142 Ill. 30, quoted at page 44 the following excerpt from the opinion in Magner vs. The People, 97 Ill. 320:

“No one has a property in the animals and fowls denominated game, until they are reduced to possession. Whilst they are untamed and at large, the ownership is said to be in the sovereign authority — in Great Britain in the king — but with us in the people of the State. Tire policy of the common law was to regulate and control the hunting and killing of game, for its better preservation; and such regulation and control, according to Blackstone, belong to the police power of the government. * * * The ownership being in the people of the State — the repository of the sovereign authority— and no individual having any property rights to be affected, it necessarily results that the Legislature, as the representative of the people of the State, may withhold or grant to individuals the right to hunt or kill game, or qualify or restrict it, as, in the opinion of its members, will best subserve the public welfare. Stated in other language, to hunt and kill game is a boon or privilege granted, either expressly or impliedly, by the sovereign authority, not a right inhering in the individual; and, consequently, nothing is taken away from the individual when he is denied the privilege, at stated seasons, of hunting and killing game. It is, perhaps, accurate to say that the ownership of the sovereign authority is in trust for all the people of the State, and hence, by implication, it is the duty of the Legislature to enact such laws as will best preserve the subject of the trust, and secure its beneficial use, in the future, to the people of the State. But in any view, the question of individual enjoyment is one of public policy, and not of private right.”

In arriving at a decision in this case, the Court wishes to acknowledge the outstanding briefs submitted by the parties hereto. There are many cases cited from other jurisdictions, which have been helpful, but have not been set out in this opinion, as they are merely cumulative.

From a review of the facts and the law herein, the Court finds that the damages suffered by the several claimants were occasioned by the Presidential proclamation No. 2748 of October 1, 1947. The fact that the Governor of this State issued a supplemental proclamation is of little consequence, for, from the date of the proclamation, the federal government was in complete authority. It cannot be seriously argued that the State of Illinois should pay damages for the action of a paramount authority, when it is apparent that the State could not have successfully challenged that authority.

In addition thereto, it is established law that a sovereign State, under its police power, may pass regulations for the protection of wildlife, and, since an individual does not have property rights in wildlife, the sovereign is not liable for any consequential damages.

This Court recognizes that claimants have suffered substantial consequential damages, but, under existing law, it is powerless to provide a remedy, as this is a matter for the Legislature.

An award is, therefore, denied.

Opinion on Rehearing

Per Curiam:

On July 22, 1960, claimants filed their petition for a rehearing, and, as grounds for such, suggest the following:

1. The Court has entirely overlooked the theory of nuisance under which claimants were alternatively proceeding.
2. The Court, while disregarding Judge Schuman’s prior opinion, has not, in any way, distinguished it, or demonstrated that such opinion was incorrect or wrong.
3. While it may be correct that the Federal government does not own migratory water fowl, the Game Code of Illinois has always categorically stated that the State of Illinois has title to and owns such birds. Therefore, such State property must be so managed and controlled as not to injure others.
4. Presidential proclamation No. 2748 and the Governor’s proclamation are of significance only as to the issue of claimants’ contributory negligence. Since such proclamations rendered claimants defenseless against geese depredations, claimants could not be charged with contributory negligence.
5. To now say that the Presidential proclamation No. 2748 was in effect, while the Governor’s proclamation was an idle gesture, is to overlook entirely the fact that the actions of the United States and the State of Illinois were coordinated to the day and almost the hour and were joint, and that the validity and efficacy of both proclamations were upheld in Lansden, Et Al vs. Hart, 168 F. (2d) 409.
6. The Court seems to think that an exercise of a valid police power absolves the State from all liability. However, negligent exercise of such power is the very basis and one of the chief reasons for the creation and existence of the Illinois Court of Claims.
7. The Court apparently feels that a governmental function is involved. Under the present Court of Claims Act and since 1945 this is immaterial.
8. The Court has entirely disregarded the trend in Illinois toward the complete abolition of governmental immunity for wrongs committed against its citizens.

As to the first point, the Court does not agree with claimants that the evidence in this case supports the theory of nuisance. To the contrary, the maintenance of Horseshoe Lake Carne Preserve was of economic importance to claimants for a number of years.

As to the second point mentioned above, the Court did not disregard the opinion of Judge Schuman, but considered it with all other evidence introduced in said case. It is to be noted that respondent filed a motion to dismiss the complaint. The only question before the Court at that time was the legal sufficiency of the complaint. The Court in its opinion used the language “for the purpose of passing on this motion, etc.,” the motion is denied. In denying the motion to strike the complaint, the Court did nothing more than rule that the complaint stated a cause of action. Thereafter answers were filed by respondent, replies were filed by claimants, the cases were tried, a whole day was devoted to oral arguments, and elaborate briefs were filed by both parties.

As to the third point mentioned in the petition, the word “owner” has been construed by the Supreme Court of Illinois in the case of Bridges vs. The People, 142 Ill. 30, to mean that the sovereign authority holds wild life in trust for all the people, rather than physical ownership as such.

As to the fourth point, there is no finding of contributory negligence in this case by the Court so as to bar a recovery by claimants.

As to the fifth point regarding the legal effect of the Presidential proclamation and the Governor’s proclamation being issued on the same day, it suffices to say that the ruling in Missouri vs. Holland, 252 U.S. 416, establishes the paramount authority of the United States to regulate under the Migratory Bird Treaty Act of 1918. Any proclamation of the Governor, issued before or after the date of the Presidential proclamation No. 2748, could not affect the finality of the President’s act.

As to the remaining objections, claimants contend that the failure of the State to protect the claimants from the depredations of the geese was an act of negligence, and this Court should recognize the trend toward abolition of governmental immunity. As was pointed out in the opinion, the Court recognized that claimants suffered losses. However, this Court may no longer make an award on the basis of equity and good conscience, but must hear and determine all claims on the basis of the law as determined by our Courts.

It seems to be well settled law that a State, acting in its sovereign capacity and as a trustee of wild life, may legislate to the detriment of an individual in the protection of wild life, and such detriment is not compensable (Barrett vs. State, 220 N.Y. 423).

The petition for rehearing is, therefore, denied.


text:
    (No. 4729
    Frank Vesci, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

    Piacenti and Cifelli, Attorneys for Claimant.
    William L. Guild, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

On June 20, 1956, claimant, Frank Vesci, filed his claim in this Court against respondent alleging certain acts of negligence of respondent’s agents, namely a flagman by the name of Joseph Mancini and the operator of a 1954 tractomobile.

The accident occurred on October 25, 1954 on 26th Street at or about 500 feet west of Salk Trail in Cook County, Illinois. The street in question was also State Aid Route No. 202 under the jurisdiction of the State of Illinois, Department of Public Works and Buildings.

The route in question was approximately four miles in length, and extended from Western Avenue on the west to Cottage Grove Avenue on the east. It coincides with 26th Street in the Village of Park Forest and the cities of Chicago Heights and South Chicago Heights.

On the date of the accident at or about the hour of 1:30 P.M., respondent, through its agents, was engaged in shaping the earth shoulders on said State Route No. 202 at the point of the accident, and to the east and west thereof. There were a number of men located at the scene of the accident, who were operating heavy duty earth moving equipment, a power-driven blade grader, and a tractomobile, which was used in picking up and depositing excess dirt into a dump truck, which then hauled it from the work site.

At the time and place set forth herein, claimant owned and was operating a 1947 Dodge truck, which he used in conducting a hauling and delivery service business. Claimant was driving his truck in an easterly direction as he came upon the location where said work was being-done, and he either slowed or stopped his truck upon instruction from the flagman. Upon a signal from the flagman, he proceeded to drive -within the area where the equipment referred to herein was being operated, and where the accident occurred.

The evidence is in dispute as to: (1) whether or not the accident occurred on the north or south side of said road, which was a concrete pavement approximately 18 feet in width; (2) whether the operator of the tractomobile negligently picked up and swung the bucket over onto the traffic lane in which claimant was driving, striking the truck on the lefthand side near the cab where claimant was sitting, and causing it to rock and nearly tip over; or, (3) whether claimant ran into and upon the bucket of the tractomobile with the resulting slight damage to the front end of the truck, which was stopped at the point of impact.

Respondent has not filed an answer to the complaint. Therefore, under the rules of this Court a general traverse or denial of the allegations set forth in the complaint will he considered as having been filed.

In addition to the complaint, the record consists of the following exhibits offered by respondent:

1. Departmental Report

2. Map of the area

3. Photographs of the scene of the accident

4. Photographs of the tractomobile

Claimant offered a stipulation as to medical reports, which respondent joined in, which also included bills of the doctors and hospital. No doctor was called to testify in person as to the nature and extent of claimant’s injuries.

This case was heard by Judge Immenhausen, who spent a considerable length of time in trying to clarify the discrepancies in claimant’s testimony as to the material facts surrounding the happening of the accident, nature and extent of his injuries, loss of earnings, and damage to his truck.

It is interesting to note that claimant did not offer a photograph showing where the truck was damaged, but respondent did offer a photograph of the piece of equipment involved in the accident. It does not show any damage whatsoever. We, however, appreciate the fact that the equipment is of heavy steel construction.

We feel justified in adopting the Commissioner’s findings as to the proximate cause and question of contributory negligence. He had an opportunity of viewing the witnesses, and interrogating claimant’s and respondent’s witnesses. His comments on the fact that claimant was unable to give clear and concise testimony as to exactly how the accident happened, and that claimant’s testimony, in many instances, was inconsistent, were noted. In reading the record and the Commissioner’s Report, we can’t help but feel that claimant was guilty of contributory negligence.

It appears to us from reading this record and examining the exhibits that claimant had every opportunity to avoid the accident in question. It appears also to us that photographs substantiating his claim or the establishing of certain physical facts might have been helpful in corroborating his testimony. However, we have no corroborating testimony given in his behalf.

Also, there was a great deal of difficulty and inconsistency in the evidence as to his injuries, loss of earnings, and, in fact, all elements of his claim for damages. The foregoing, coupled with his inconsistent testimony and lack of evidence to substantiate his claim, are our reasons for denying his claim for personal injuries, property damage, loss of use of the truck, and salaries for additional help.

The record and transcript of evidence in this case are wanting in many respects in establishing a claim against respondent, especially where respondent had set up safeguards warning the traveling public in going through the area in question at the time of the accident.

Respondent is not an insurer of all persons traveling upon its highways. Where construction work is taking place, all that respondent has to do is to use reasonable safeguards in warning the traveling public of the location where such construction work is in progress. We believe from this record that respondent issued the required warnings, and claimant had ample notice of the construction work taking place through the area in which he was driving when the accident occurred. Further, we believe that it was his negligence and not the negligence of respondent’s agents, which was the proximate cause of the accident resulting in his injuries.

It is, therefore, the order of this Court that the claim filed herein he denied.