text:
    (No. 4792
    Effie Truax, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 2, 1959.

      Petition of Claimant for rehearing denied November 16, 1960.

    McMahon and Plunkett, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Effie Truax, 59 years of age, fell on the sidewalk approaching one of the entrances to the Manteno State Hospital on December 30, 1955, and sustained injuries to her person, for which she has claimed damages against the State of Illinois in the sum of $7,500.00, because of respondent’s alleged negligence in allowing a crack or raised defect in the sidewalk to exist at the point where she allegedly stumbled and fell.

The principles of law involved are clear, and it is not disputed that claimant, in order to recover in such a case, must prove that she was in the exercise of reasonable care for her own safety at the time of and immediately prior to her falling; that the State of Illinois negligently allowed a dangerous defect to exist in the sidewalk; and that the dangerous defect proximately caused the plaintiff to trip and fall with resulting injuries.

The main question in this ease is whether or not the evidence offered satisfies the burden of proof, which is upon claimant. Like so many cases involving a fall, the owner of the premises, in this instance the State of Illinois through its agents, was not present at the time of the incident, and the occurrence witnesses were those called by claimant.

We have carefully considered the evidence offered, and have found it to be unsatisfactory in several respects.

In the first place, the evidence offered does not contain a satisfactory explanation as to why claimant failed to see and avoid the defect she claims was present. At the time of her injury, approximately 11:45 and in daylight, she was accompanied by a John F. Keeley onto the hospital premises for the purpose of visiting her sister, a patient at the hospital.

After Mr. Keeley had parked his automobile upon the grounds, he and claimant walked to the sidewalk in question, which abutted the Administration Building on the east, and proceeded south thereon a short distance at which time claimant fell.

As an explanation for claimant not seeing the alleged, defect upon which she claims to have fallen, claimant relies upon the testimony of both Mr. Keeley and herself. An examination of this testimony reflects a decided conflict between the two. Mr. Keeley testified at page 62 of the transcript on this point as follows:

“Q. As you approached the sidewalk and as you got on the sidewalk and started to walk south, was her attention attracted to anything at that time.
A. Merely three or four people coming in the same direction converging on the east door of the Administration building. They were coming from the northwest. We were coming from the northeast. We arrived right there on the sidewalk, and, as I recall, we let them go first.
Q. Do you know for what reason her attention was attracted to these people?
A. Well, merely so we wouldn’t bump into the people. That is about all.”

He then testified that she fell when she was about fifteen feet from the door of the Administration Building.

At page 68 of the transcript he testified as follows:

“Q. Where were you in relation to Mrs. Truax when she fell?
A. I was on her immediate left.
Q. You were standing on the side of her?
A. Right on the side, yes, sir.
O. On her left side?
A. Yes, sir.”

At page 88 of the transcript this witness testified as follows:

“Q. By the Commissioner: And you were on her left or right side?
A. I was on her left at this time. I had been on her right as we left the automobile.
The Commissioner: And you were to the left of the point where she fell, is that right?
A. I was closer to the curb, yes.
The Commissioner: Did you have her by the arm then?
A. No, sir, I had her by the arm until we got to the sidewalk.
The Commissioner: How far away were you from her when she stumbled?
A. A matter of an inch. I was perhaps touching her garment, I was so close.”

On the other hand, Mrs. Truax’s testimony on this point at page 95 of the transcript reads as follows:

“Q. After you reached this sidewalk abutting the east side of the Administration Building, what did you do, if anything?
A. We turned south to walk to the stairway.
Q. Then what happened?
A. There were people passing with us, a couple of people, and then people coming directly towards me.
Q. And as you walked south—
A. As I walked south, these people directly in front of me weren’t paying any attention. I started to get out of the way to keep from bumping into them, and my toe caught on this raise or rise in the walk. It was broken, and it was a jagged edge and broken, and I stumbled and fell.
Q. Just prior to your fall where were you with reference to Mr. Keeley?
A. He was on my left side.”

At pages 99 and 100 of the transcript she testified as follows:

“Q. As you reached the sidewalk and started to walk south, you say your attention was attracted to these pedestrians is that correct?
A. Yes, that is true.
Q. And why was your attention attracted to them?
A. Well, because they were coming directly toward me, and they didn’t —they weren’t paying any attention to anybody except themselves and coming directly towards me, and I knew in order to keep from bumping them I had to step aside. In stepping aside, I didn’t have any opportunity to look down. I just tripped.”

And again at page 119 of the transcript she testified as follows:

“Q. Did you notice the sidewalk prior to your falling, Mrs. Truax?
A. No, I didn't. We had just barely stepped up on the sidewalk,
and the people were coming toward us, and I had no opportunity of seeing
the sidewalk any more than as I stepped up on it, it was clear, but after
I turned to go south, I had no opportunity of noticing.
Q. How far had you proceeded on the sidewalk from the street or the curb to where you fell?
A. I would say just a few steps.
Q. Just a few steps?
A. Yes.
Q. How far were these people away who were approaching you?
A. Just about the same. As we stepped up, they were coming directly toward us.
Q. I say, about how far from you?
A. I would say perhaps three feet.
Q. Three feet?
A. Three or four feet.
Q. Three or four feet, approximately?
A. Approximately, yes.
Q. Were you facing them directly?
A. Yes, I was.
Q. And they were facing you directly?
A. That is right.
Q. How many people were there?
A. Three.
Q. And the sidewalk crack was in between you and them?
A. Right. They were just about, I would think now, they were possibly just about on that crack, but I noticed they were coming toward us, because they couldn’t have gone very far.
Q. They were on the crack when you first noticed them?
A. Just about.
Q. What happened after that?
A. When I stepped out to go around them, because I didn’t want to bump into them, my toe caught in the crack and away I fell.
Q. If they were on the crack, and you stepped around them, where were you in relation to the curb?
A. Well, let me see. I couldn’t have taken more than three steps on that sidewalk, and as I looked up these people were coming directly toward me. I didn’t look down at all. I watched them, because I felt I didn’t want to bump right into them, and they were concentrating on some kind of conversation, and I stepped to one side to keep from bumping into them. As I stepped around them, I fell, and I presume they must have been awfully close to the crack.
Q. You don’t know if they were on the crack?
A. No, I don’t really know.”

It is significant from this testimony that claimant is not corroborated by her witness Keeley as to the reason she did not see the defect. It seems to us that, if three people had been bearing down on the claimant in the manner she stated they were, her companion, who was walking closely beside her and practically touching her, would have seen these persons. His testimony makes no reference whatsoever to any pedestrians on the sidewalk other than those walking south. His explanation that her attention was attracted to those pedestrians also proceeding south is not persuasive. At the most, this is a conclusion on his part,-and is, in effect, negatived by claimant herself, who makes no contention that the southbound pedestrians distracted her.

Moreover, the testimony of claimant that she had walked up on the sidewalk at a point not more than three steps from the alleged defect without seeing it indicates to us that she was not paying a great deal of attention to the place she intended to walk, since it is rather obvious she would have seen it, if she had looked down as she stepped up over the curb onto the sidewalk.

We can come to no other conclusion than that her excuse for failing to see the defect is more speculation than fact, and is not persuasive.

In the second place, the evidence offered regarding the location of the alleged defect with respect to claimant’s position when she fell is likewise not satisfactory. The photographs offered in evidence by claimant, taken by her witness, Mr. Keeley, some six or seven months after claimant was injured, and the testimony regarding same, establish the location of a raised place beginning at the curbing of the sidewalk and running west a foot or more in length. Claimant marked a point on the photographs, designated as claimant’s exhibits Nos. 23 and 24, indicating where she fell. The marks placed by claimant on these photographs are very near the curb, and appear to be considerably less than one foot from the curb.

The witness Keeley marked on claimant’s exhibit No. 25, a photograph of the alleged defect, the place where she stumbled. It likewise was close to the curb, and in the same relative position as claimant had indicated. He characterized the mark he made as being approximately two feet from the curb.

Both Mr. Keeley and claimant were walking on the sidewalk according to their testimony, with Mr. Keeley being next to the curb and claimant to his immediate right. Claimant testified that she “started to get out of the way to keep from bumping into” the persons directly approaching her from the south, when she caught her foot on the curb and fell.

It is obvious she could have gone only one way in attempting to avoid three people coming directly toward her, namely, to the west or away from the curb. It is obvious that Mr. Keeley was occupying the foot or two of sidewalk immediately adjacent to the curb. Such a position occupied by the witness Keeley would make it physically impossible for claimant to trip at the point indicated by both of these witnesses.

We also note on this question of the location of the place where claimant fell Mr. Keeley’s testimony at page 49 of the transcript:

“Q. As you started to walk south on this sidewalk abutting the east side of the Administration Building, did anything unusual happen?
A. Yes. As we were walking south Mrs. Truax hit the curb a sharp resound and fell to the ground.”

We feel that the evidence regarding the place of claimant’s fall, and the causal connection between the alleged defect and the fall is speculative and unclear.

In the third place, we are not satisfied with respect to the evidence regarding the size of the alleged defect. Claimant in describing it stated at page 98 of the transcript as follows:

“Q. Can you tell the Court about the dimensions of this rise; how high was it?
A. I would say about two inches.
Q. Approximately how wide was it?
A. I would say about twelve inches wide, twelve or fourteen inches.”

She saw it on only two occasions — the day she fell, and six months later at the time Mr. Keeley took the photographs. On the first of these occasions she was in great pain from her injuries and almost delirious according to Mr. Keeley.

The "witness Keeley testified at page 50 of the transcript with respect to the size of the defect as follows:
“Q. Tell the Court about the dimensions of this rise. For instance, how high was it?
A. It was approximately two inches tall.
Q. How many inches would you say it was in width or how many feet for that matter?
A. It was at least a foot in width, at least a foot.”
At page 70 of the transcript he testified as follows:
“Q. How deep a crevice or obstmction would you say this crack created?
A. It was at least two inches above the ground for a length of a foot.
Q. It ran a foot, is that correct?
A. It ran a little further, but it diminished in height after that.
Q. It diminished in height after that?
A. Yes, sir.”

He further testified that he had seen it for approximately two or three years prior to the accident, and that the photographs admitted into evidence on behalf of claimant were correct representations of the conditions. Neither claimant nor the witness Keeley testified that they actually measured the height of the crack. We, therefore, presume their statements regarding the height of the defect represent their estimate of the height without measuring it.

We have examined these photographs, and they do not appear to us to reflect a crack two inches in height.

Respondent offered as exhibit No. 14 a Departmental Report, which was admitted into evidence, and which reads in part as follows:

“Claimant proceeded west from the parking area to the sidewalk abutting the east side of the Administration Building, and then proceeded south along that sidewalk to a point approximately 3714 feet south of the northeast comer of that sidewalk where she fell. This was a short distance north of the east entrance to the Administration Building. This sidewalk is the main sidewalk in front of the Administration Building, traversed by most visitors, many employees and many patients. The average number of persons using this walk in a given month would be approximately 400 per day. No accidents of the type referred to in the complaint herein have ever occurred on that sidewalk except the one referred to in the complaint. The sidewalk in front of the Administration Building is six feet in width at the place where claimant fell.
“It appears that claimant stumbled at the location of a normal expansion joint in the sidewalk between which asphalt tar had been poured, and at which there was a slight rise of one of the blocks at the joint over the other, not exceeding at any point the height of one-half inch."

Photographs were attached to the Departmental Report and admitted into evidence. Several of these photographs show the crack to be less than the height of a quarter, which is shown in the photographs, and less than the thickness of a package of cigarettes.

The only evidence offered to refute this evidence is the witness Keeley, who stated that none of the photographs offered by respondent portrayed a true photographic representation of the rise at the time of the accident.

We have compared the photographs of claimant and respondent, and they appear to us to be of the same area and show the same crack, although respondent’s are taken from a different angle, and are considerably more clear cut in detail.

If the Departmental Report is correct, and the crack only one-half inch in height, then the defect complained of is not, in our judgment, a sufficiently dangerous condition upon which to base a recovery under the circumstances, conditions and locations involved in this case.

It is common knowledge that every city in the country has an untold number of defects and cracks in its sidewalks of such a nature, and that it would be an endless task to level all one-half inch rises at expansion joints. Although it is true that on city sidewalks pedestrians are entitled to a reasonably safe condition for travel, by the same token they are not entitled to perfection. The test of reasonableness is a two-fold test. The state in maintaining its sidewalks needs only to exercise reasonable care — no more and no less. In our judgment it would be unreasonable to require the state to repair every one-half inch crack in its sidewalks. Such a requirement would fasten upon the state the duty of an insurer, which is not now, nor should it ever be, the law.

In our judgment, in view of the conflict in the evidence noted above regarding the size of the alleged defect, we do not believe that claimant has borne the burden of establishing a dangerous defect.

After weighing all of this evidence in our capacity of judging the facts as well as the law, we do not feel that claimant has borne the burden of proving the essential elements of her case.

We, therefore, find that this claim should be denied.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4839
    Grover C. Henderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

      A. Donald Fishbein, Attorney for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

The complaint filed in this case is for personal injuries sustained by claimant on September 14, 1956, while he was driving his automobile in a westerly direction along and upon the north half of that portion of State Route No. 9, which is approximately four-fifths of a mile east of Rankin, Illinois and State Route No. 49.

At the time and place aforesaid, respondent, namely the Department of Public Works and Buildings, had under its control and supervision the stretch of road where the accident occurred, which was being repaired by duly authorized agents and employees of respondent. In so doing, it is alleged by claimant that respondent, by and through its agents, left unprotected, with no barricade or any warning whatsoever, a portion or section of said highway, which had been removed. Furthermore, respondent, through its duly authorized agents, failed to erect, in addition to other signs, a detour sign warning the traveling public of the defect in the highway.

It is further alleged that, as a direct and proximate result of the defective condition of the highway created by the agents of respondent, claimant, while operating his automobile thereon on September 14,1956, at or about the hour of 11:40 A.M., drove into said hole in the highway. The opening in question measured approximately eight feet by seven feet at a point where the pavement was approximately sixteen feet in width and seven inches thick. The hole extended across the entire westbound traffic lane. The westerly opening cut into the highway was approximately one mile east of the intersection of Routes Nos. 9 and 49. Another opening was cut into the easterly lane of traffic at a point approximately one and one-fourth miles east of Route No. 49.

No answer having been filed by respondent, a general traverse of the allegations of the complaint will be considered under the rules of this Court.

The only evidence offered as to the condition of the highway was the testimony of. claimant and his witnesses.

Respondent offered as its only exhibit and evidence a Departmental Report, which can only be considered as prima facie evidence. In our opinion, in order to sustain the position of respondent, evidence of agents, who were familiar with the facts existing at the time of the alleged occurrence, should have been presented.

We are familiar with the fact that the State of Illinois is not an insurer of all persons, who travel upon its highways. However, the State is bound to maintain its highways in such a condition that the public can travel upon them with a degree of safety. Respondent is required to protect and warn the traveling public when any major improvements are being made, such as removing portions of the surface of highways, and should erect warning signs, flares, and use any and all devices to warn the traveling public of the repair work going on, or provide a detour, which would be safe for the public to drive on.

Respondent, of course, is relying upon the defense of contributory negligence and the Departmental Report.

We cannot ignore the evidence, which has been produced and offered on behalf of claimant. After taking into consideration all of the evidence, the facts and circumstances, as well as the physical facts surrounding them, we are of the opinion that claimant has maintained the burden of proof in first proving by a preponderance or greater weight of the evidence that he was free from contributory negligence; secondly, that it was the negligence of respondent in leaving the highway in the condition it was in at the time without erecting barricades or proper signs warning the traveling public of the condition of the highway, or providing a safe detour for the traveling public upon said highway; and, thirdly, damages.

At the time of the alleged accident, claimant, Grover C. Henderson, was 69 years of age, was in good physical condition, and had normal vision. He was employed by the Nickel Plate Railroad Company of Cleveland, Ohio as a freight car inspector, and received a salary of $85.00 a week. He had been employed by said company for 38 years. His duties consisted of inspecting and classifying the freight cars of said company, which were located at various places along the railroad. He performed these duties by driving his automobile from place to place.

On the day of the accident, claimant was driving his 1951 Oldsmobile 4-door Sedan, which he had purchased for the sum of $950.00. The only evidence, which we have, is that the car was in a good mechanical condition. Claimant testified that he had been driving an automobile for over 50 years, and that he had driven over this particular portion of the road at least twice a day, six days a week, for 24 years.

Along this line, claimant further testified that, on the day of the accident, he traversed this route at 4:30 A.M., driving east from Rankin to Hoopeston, Illinois, and at that time he did not notice any repairs of construction work being done to the road, nor any indication that there would be any. At 11:20 A.M. he left Hoopeston to return to Rankin, driving west on Route No. 9, traveling in the westbound traffic lane at a speed of between 55 to 60 m.p.h. It was a bright, clear day, and the pavement was dry. There was very little traffic, and he passed no other westbound vehicles. As he drove over Route No. 9 toward Rankin, he did not notice any repairs or construction work being done to the highway, or any indication that there would be any ahead of him, nor any signs, flags or barricades warning of the repairs and construction work then being done to the road ahead.

Corroborated testimony also appears in the records that, approximately one to one and one-fourth miles east of Rankin, Illinois on Route No. 9, there is a hill, and at its crest there is a gravel road, which joins Route No. 9 from the south, but does not continue north of Route No. 9. West of the gravel road there is a slight curve to the north on Route No. 9, but westbound traffic is unable to see the curve and the road, which continues on west until it passes the gravel road. It was at this point where a portion of the pavement had been removed.

Claimant testified that, “I was just a split second from the hole before I saw it.” He also testified that there was a light pole on the shoulder of the road to the right and north of the hole. To avoid hitting the pole, he swerved his automobile to the left, drove it oft of the road and into a cornfield on the south side of the road. His automobile was totally wrecked, and was later junked. He was taken to the Paxton Community Hospital, where he later regained consciousness, and remained for nineteen days.

The treating physician was Dr. Alfonso Raquero, who did not testify at the time of the hearing. However, by stipulation, claimant’s exhibit No. 5, which is a medical report from the doctor, was admitted into evidence. The admission diagnosis was as follows: cerebral concussion ; shock, severe; possible internal injuries; and multiple lacerations, abrasions and contusions. He was treated for shock, the open wounds were sutured, and he was given care consistent with preventing sepsis. On September 19, 1956, he developed a severe case of paralytic ileus, which remained a severe problem for two or three days. His course after September 22 was uneventful, and he was discharged on October 3, 1956. The final diagnosis of his injuries were: cerebral concussion; fractured skull, crack type, compound, left occipital area; fracture left os ilium, comminuted; contusion-sprain of the cervical spine and shoulders; multiple lacerations, abrasions and contusions; paralytic ileus, due to trauma.

According to the medical report, claimant was last seen by the doctor on January 6, 1959. He was still complaining of severe dizziness, which was more marked on change of position. The symptoms had remained since the accident with temporary improvement noted while taking medication.

At the time of the trial, claimant testified as to his present physical condition to the effect that his hand still appears to be half paralyzed, that he suffers from a dizzy condition for which he is still taking medication, and that he did not experience this condition prior to the accident on September 14, 1956. He further stated that he goes to the doctor all of the time, and that he is not able to drive his car as he did before the accident.

There is nothing in the doctor’s statement relative to the paralysis, so that we are confined to the injuries appearing in the medical statement, which was admitted in evidence, and the prognosis given therein.

As to special damages, claimant testified that he paid $950.00 for his automible, which was a 1951 Oldsmobile Sedan, that it was a total loss, and was junked. However, neither claimant nor respondent attempted to show what salvage was received, or raised the question of storage or towing.

Under the circumstances, we could not consider that the automobile was worth the same on the day of the accident as it was at the time it was purchased. We must, therefore, consider depreciation on this car from the date on which it was purchased to the date of the accident, and certainly there must have been some salvage received by claimant. From the record, claimant’s special damages, in addition to the automobile, amounted to approximately $1,288.39.

Claimant was employed by the Nickel Plate Railroad Company at a salary of $85.00 a week prior to and on the date of the accident. The record indicates that he has not worked since that date.

It is, therefore, the opinion of this Court that claimant is entitled to an award for personal injuries and property damage in the sum of $7,500.00.


text:
    (No. 4851
    Clinton O. Sims and Allstate Insurance Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

    Clinton O. Sims, Claimant, pro se; and Fitzgerald, Petrucelli and Simon, Attorneys for the Allstate Insurance Company.
    William. L. Guild, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

The original claim of Clinton O. Sims was filed in this Court on December 24,1958.

On September 12, 1960, a motion to intervene was filed on behalf of the Allstate Insurance Company by Messrs. Fitzgerald, Petrucelli and Simon. Attached to the motion is a subrogation agreement, which was signed by Clinton 0. Sims in the amount of $403.25, representing the amount of money that the Allstate Insurance Company paid to Clinton 0. Sims under the collision portion of his policy on a 1956 Ford.

The original claim filed was for damages to the 1956 Custom Ford of claimant, Clinton 0. Sims, arising out of an automobile accident with a U. S. Army truck driven by Nolan A. Baity, a soldier with the rank of private, of the 178th Regimental Combat Team Headquarters Battery 184 F.A. It is alleged in the complaint that Private Baity drove and operated said truck in a negligent manner, causing it to collide with the automobile of claimant, Clinton 0. Sims, on July 1, 1958, which said automobile was parked on 35th Street near the intersection of Indiana Avenue, in Chicago, Cook County, Illinois.

This case was heard by Herbert G. Immenhausen, one of the Commissioners of this Court, on April 15,1959, who found the proximate cause of the damage to claimant’s automobile was the negligence of Nolan A. Baity, and recommended assessing damages covering cost of repairs of $623.66 and car rental of $72.00, making a a total of $695.66.

Respondent offered a Departmental Report, which substantiated the claim.

Inasmuch as Allstate Insurance Company has been allowed to intervene under its subrogation agreement with claimant, Clinton 0. Sims, and an order has been signed permitting such intervention, it is, therefore, the order of this Court that an award be made to Clinton 0. Sims in the amount of $292.41 for the damages he sustained. An award is also hereby made to Allstate Insurance Company for the amount of $403.25, which it has paid to Clinton 0. Sims.


text:
    (No. 4855
    Virginia Shull, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

    Lachlan Crissey, Attorney for Claimant.
    William L. Guild, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Virginia Shull, has filed a complaint asking $5,000.00 for personal injuries, which she sustained on January 24, 1957.

This Court had occasion to render an opinion in the consolidated cases of Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Brothers, and Noi Coleman and Earl Coleman vs. State of Illinois, Nos. 4776 and 4781, in which awards were entered in favor of claimants as follows: Earl Coleman and Noi Coleman, claimants in case No. 4781, the sum of $2,000.00 for personal injuries ; Hardware Mutual Insurance Company, the insurance carrier for claimants in case No. 4776, Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Bros., the sum of $2,419.62; and Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Bros., claimants in case No. 4776, the amount of $50.00.

• Virginia Shull was the operator of the automobile, and brings this claim as an outgrowth of the same accident.

This Court previously passed upon the question of liability. This matter is now submitted on a joint motion for submission of the case on the findings of the Court in consolidated cases Nos. 4776 and 4781, in which is incorporated an agreed statement of personal injuries of claimant, and motion for waiver of abstract and briefs. It reads as follows:

“Comes now claimant, Virginia Shull, by Lachlan Crissey, her attorney, and respondent, State of Illinois, by Grenville Beardsley, Attorney General of the State of Illinois, attorney for respondent, and moves this Honorable Court to accept and consider this cause upon the findings of occurrence facts by the Court as embodied in the opinion of the Court of Claims in the consolidated cases of Clare B. Shull cmd Carter Shull, A Partnership, d/b/a Shull Brothers, and Noi Coleman and Earl Coleman vs. State of Illinois. Nos. 4776 and 4781, filed October 22, 1958, and upon the medical certificate of injuries of claimant herein, and further moves the Court to waive filing of abstract and briefs by claimant and respondent, and as grounds for said motion state as follows:
1. That the liability of respondent and due care of claimant have been established by the findings and opinion of this Court in the above mentioned consolidated cases; that the opinion of the Court in such cases is final, and that there are no disputed questions of law or fact in this case to warrant the taking of evidence on the liability of respondent or due care of claimant. A copy of the opinion of the Court in Court of Claims cases Nos. 4776 and 4781 is attached hereto, marked exhibit A, and incorporated herein by reference.
2. That the compensable injuries of claimant in this case are small, have been established by competent medical examination, and are presented by a medical statement made by A. D. Markel, M.D., of 623 Pine Blvd., Poplar Bluffs, Missouri, dated February 5, 1960, which said injuries are not disputed by respondent. A certified copy of medical findings by Dr. Markel are attached hereto, marked exhibit B, and incorporated herein by reference.
3. That there are no disputed questions of law or fact on the extent or nature of compensable injuries sustained by claimant, the only question for determination being the amount of damages, which must be determined by the Court, and that the submission of an abstract and briefs will serve no useful purpose.
Wherefore, it is prayed that the Court will accept and consider the claim of claimant, Virginia Shull, and fix the damages incurred as a result of the collision between claimant’s automobile and an Illinois National Guard vehicle as established by the finding of fact previously made by this Court in consolidated cases Nos. 4776 and 4781.”

The only question remaining to be passed upon is the amount of the award based upon the medical reports, which were submitted with the complaint and record of proceedings. It appears from the medical report of Dr. Edwin F. Baker of Lewistown, Illinois, and Dr. A. D. Markel of the Kneibert Clinic, Popular Bluff, Missouri, that the principal injury of which claimant is complaining is that to her left thumb, along with cuts, abrasions and contusions. However, the medical reports are confined to her left thumb and knee.

Dr. Baker’s subjective findings were that she does not have any pain in her left thumb, but does not use the thumb to hold any valuable or breakable article, or anything dangerous, such as a hot dish, because of the weakness in the thumb. Without warning, the thumb may become weak, and the article will drop.

The objective findings were that the metacarpal phalangeal joint is enlarged, and there is limitation of flexion to 70 degrees. There is no limitation in adduction or abduction, and finger approximation is normal. There is moderate atrophy of the intrinsic muscles of the thumb. Subjectively, the left knee does not present any complaints, and objectively it is normal. It was the opinion of Dr. Baker that Mrs. Shull has a 50% disability in her left thumb.

A more recent medical for Mrs. Shull was done by Dr. A. D. Markel. His report, dated February 5, 1960, is as follows:

“I examined Mrs. Virginia Shull on February 4,1960 in regards to an accident, which she states she had had on January 24, 1957. The patient says she does not have very much pain in her left thumb, but this is the thing that bothers her mostly, and she cannot use the thumb to hold anything of any weight. She seems to be unable to put a pressure down on any object that she is trying to hold. She states that, after she holds an object for some time, the thumb becomes weak, and the object easily drops from her hand.
“Upon examination the metacarpal phalangeal joint is enlarged, and there seems to be some degree of inability to move the finger in a flexion position to more than 70 degrees. There is no abduction limitation or adduction limitation. The finger approximation is within normal limits. There does seem to be a small amount of atrophy of the intrinsic muscles of the thumb with some degree of tremor and weakness of the thumb upon examination. Her left knee was hurt at the time of the accident, but she states that there was no residual effect of the knee, and, therefore, no x-ray was made.
“We x-rayed the thumb at the time of this examination, and it does show some degree of arthritis with roughening of the joint edges, which probably is the cause of the muscular weakness and the joint weakness of the metacarpal phalangeal joint. This also accounts for the enlargement and the limitation of flexion. We feel that the arthritis of this joint is traumatic in origin, since she states that she had had no trouble with this before the accident. The left thumb continues to have a 50% disability, and I imagine that there will be a certain percentage of permanency of the disability in the thumb of the left hand.”

Whether or not claimant has lost any earnings does not appear in the record or joint motion. Therefore, we are confined solely to the question of the extent of the permanent injury to her left thumb. There is also an absence of findings in the medical reports as to whether or not the condition of the left thumb might improve with therapeutic treatments.

Based upon the medical findings submitted, the nature and extent of the injuries of claimant, an award is hereby made in the sum of $1,000.00.


author: Wham, J.

text:
    (No. 4862
    Fred Boelkow, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

    Melvin A. Garretson, Attorney for Claimant.
    William L. Guild, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Fred Boelkow, brings this action to recover $406.50 for damage to his automobile, which collided Avith a State of Illinois mowing machine on September 25, 1958 on Route No. 41 near its intersection with highway No. 163 in Lake County, Illinois.

Josephine BoelkoAV, Avife of claimant, testified that she was driving south on the extreme left southbound lane of the six lane highway. The southbound lanes were separated from the northbound lanes by a grass parkAvay. She observed a southbound State vehicle in the same lane ahead of her. It turned off onto the parkway Avhen she was approximately two car lengths behind it and proceeding at a speed of 20 miles per hour. She continued south until she heard or felt a jolt caused by an impact betAveen the State vehicle and claimant’s vehicle. She stopped Avithin one car length, and did not move her automobile until the police arrived. The State moAving machine, however, Avas moved. She stated that the front of the State machine came in contact Avith the left rear side of claimant’s vehicle. At the time of the impact the State vehicle Avas facing Avest at a right angle to her automobile.

Frank Brown, an employee of the Division of Highways, State of Illinois, testified that he was moAving the parkway Avith a Ferguson mower on the date of the accident. He had gone south along the east edge of the parkAvay, and had started to turn right to head back north and mOAV a strip along the west edge of the parltAvay. He then observed Mrs. Boelkow start to pass another automobile on a curve. He stated she partially left the pavement, Avent into a gulley on the parkway, and struck the moAving machine, Avhich was stopped off the highway headed Avest at the time of the collision. The left rear door to the left rear bumper of claimant’s automobile was damaged when it hit the front end of the mowing machine as Mrs. Boelkow SAverved to the right.

This is all of the testimony offered by both parties, and it is in absolute conflict. We see no more reason to give credence to Mrs. Boelkow than to Mr. BroAAm from the evidence appearing in this record. The evidence is no more than evenly balanced, and claimant has not borne the burden of proving that respondent Avas negligent and proximately caused the collision.

We must, therefore, deny this claim.


text:
    (No. 4898
    Ray S. Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

    Ray S. Thompson, Claimant, pro se.
    William L. Guild, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Bay S. Thompson, the duly certified official court reporter of the 17th Judicial Circuit, brings this action to recoA^er $253.80 for travel expenses incurred in the performance of his duties from March to December of 1958, and January through June of 1959. At the time these expenses were incurred, there remained a sufficient unexpended balance in the appropriation from Avhieh payment could have been made. Proper vouchers Avere filed, but they were presented for payment after the appropriation for the 70th Biennium had lapsed.

There is no doubt as to the claim, and the following stipulation Avas entered into by and betAveen claimant and respondent:

“It is hereby agreed and stipulated by and between Ray S. Thompson, claimant in the case herein, and the State of Illinois, respondent, through its attorney, William L. Guild, Attorney General of the State of Illinois:
1. That claimant, Ray S. Thompson, is the duly certified official court reporter of the Seventeenth Judicial Circuit of the State of Illinois with his principal place of performance of duties in the cities of Rockford and Belvidere, Illinois;
2. That during the period of March through December, 1958 travel expenses were then incurred by Ray S. Thompson, claimant, in the performance of the above mentioned official duties on the dates and in the amounts set forth in exhibit A of the complaint heretofore filed in the cause herein;
3. That during the period of January through June of 1959 travel expenses were incurred by Ray S. Thompson, claimant, in the performance of the above mentioned official duties on the dates and in the amounts set forth in lines one through seventeen of exhibit B of the complaint heretofore filed in the cause herein;
4. That vouchers for travel expenses were filed by Ray S. Thompson, claimant, in accordance with Section 12 of an Act entitled 'An Act in Relation to State Finance’;
5. That a claim in the amount of $253.80 was filed with the office of the Auditor of Public Accounts, State of Illinois, on December 7, 1959;
6. That the expenses incurred as set forth in exhibits A and B of the complaint hereinabove mentioned are reasonable, and were in fact incurred;
7. That Ray S. Thompson, claimant, is entitled to an award in the sum of $253.80.”

Claimant is obviously entitled to compensation for these incurred expenses, and the claim is hereby allowed in the sum of $253.80.


text:
    (No. 4899
    Texaco, Inc., formerly named the Texas Company, a Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

    Louis G. Geannopoulos, Attorney for Claimant.
    William L. Guild, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

A claim in the amount of $281.00 for merchandise purchased by respondent was filed on January 29, 1960. Attached to the complaint is purchase order No. 345363 given to claimant by the Department of Public "Works and Buildings, Division of Highways.

A joint motion has been filed submitting this matter on stipulation, which in substance is as follows:

(1) That the report of the Department of Public Works and Buildings, Division of Highways, shall constitute the record in this case;
(2) That claimant’s claim totalling $281.00 is justly due and owing to claimant by respondent;
(3) That the instrument is intended solely as a stipulation of the facts, or some of them, relating to the claim, and was executed for the purpose of avoiding the necessity of taking evidence with reference to such facts.

Based upon the stipulation and the Departmental Report filed herein, an award is hereby made to claimant in the amount of $281.00.


text:
    (No. 4915
    Thomas J. Winking, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

    R. W. Deffenbaugh, Attorney for Claimants.
    William L. Guild, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Fearer, J.

An amended complaint was filed in this Court on August 26, 1960, as an outgrowth of an accident, which occurred on January 10, 1960, at the Clark Service Station, 20th and Broadway Streets, Quincy, Adams County, Illinois.

In addition to the claimant herein, it appears from this record that the Allstate Insurance Company has a subrogation claim in the amount of $51.41. Claimant, Thomas J. Winking, has a claim in the amount of $50.00, being the deductible portion of his policy.

A joint motion between claimant and respondent, by their respective attorneys, was entered into to the effect that this cause be submitted on the amended complaint and Departmental Report; that there is no dispute of law or facts; that the Departmental Report of the Attorney General shows the matters alleged in the complaint and amended complaint to be true and correct; that claimant and respondent have entered into a stipulation of damages in the amount of $100.41; that the filing of briefs and abstracts and the submission of the cause to a Commissioner under these conditions would serve no useful purpose.

It is, therefore, the order of this Court that an award be made to Thomas J. Winking in the sum of $50.00, and, under the subrogation rights of the Allstate Insurance Company, an award is made to it in the sum of $50.41.


text:
    (No. 4619
    Louis R. Jedlicka and Mildred E. Jedlicka, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1960.

      Petition of Claimants for rehearing denied on January 10, 1961.

    Hoffman and Davis, Attorneys for Claimants.
    William L. Guild, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

Claimants, Louis R. Jedlicka and Mildred N. Jedliclca, bring tMs action to recover $14,400.00 for loss of rental from their gasoline station property, located in the City of Chicago, by reason of condemnation proceedings instituted by the Department of Public Works and Buildings of the State of Illinois. They claim that these proceedings were pending from March of 1941 until August, 1953, when the case was dismissed by the State, and that by reason thereof claimants were precluded from leasing their property and sustained damages.

The record reflects that on one occasion in February of 1952, claimants obtained a continuance of the condemnation suit over the objection of respondent. On several occasions in 1942 and subsequent to 1948, respondent obtained a continuance of the trial setting. From the middle of 1942 through 1948, little was done by either party on the matter. Negotiations between the parties for the acquisition of the property continued intermittently between 1948 and 1953. At no time during the pendency of the condemnation case did claimant seek to have the case dismissed, nor did they take formal action in Court to press for a trial other than to appear and announce ready at several settings.

Respondent’s exhibit No. 3, the Departmental Report, sets forth the reason for the delay and for the dismissal of the action on April 23, 1953, and reads as follows:

“That part of Mannheim Road in Cook County between 119th Street on the north and 143rd Street on the south was designated by the Department of Public Works and Buildings as a part of State Bond Issue Route No. 51 in conformity with the statutes establishing the One Hundred Million Dollar Bond Issue System.
“In the year 1921, the section above referred to was paved with 18 feet of concrete. August 2, 1941, a contract was awarded to widen and resurface the above section. The pavement was completed on August 20, 1942.
“The original construction was confined to the existing right-of-way, which in most instances was four rods or 66 feet in width. Because of the increased width of pavement, width of shoulders, and improvement of lateral drainage under the 1941 contract, it was considered desirable to acquire additional right-of-way from a number of adjoining properties. Among those properties from which additional right-of-way was to be secured was that of Louis R. Jedlicka, et al. The Jedlicka property is situated at the southwest comer of the intersection of Mannheim Road (S.B.I. Route No. 51) and 131st Street in Palos Township, Cook County.
“An effort was made to acquire 0.538 acres, more or less, from the Jedlicka property through negotiation. That procedure having failed, the Department of Public Works and Buildings instituted eminent domain proceedings against Louis R. Jedlicka, et al, on March 11, 1941.
“The necessary precedent firm offer of settlement was made to the defendants on behalf of the Department of Public Works and Buildings, and was rejected.
“May 6, 1941, the Attorney General served the defendants with notice that the case, No. 41S-3192 in the Superior Court of Cook County would be set for trial on a date soon thereafter. A continuance was granted to the February, 1942 term. The Attorney General sought a hearing on February 18, 1942, but counsel for defendants asked for and was given a continuance. At that time construction operations were being carried on near the Jedlicka property, and it was vitally important that the Department know whether or not the desired tract of land would be acquired in a relatively short time. In addition, the nation was in the throes of serious war effort, and, as a result, steel products were in short supply.
“Rather than risk the possibility of a contractor not being able to secure the necessary amount of reinforcing steel bars, as well as other steel products, the Department authorized the contractor to proceed with construction work along the Jedlicka property frontage. The work was completed and confined to the existing right-of-way. After construction of the section of highway adjacent to the Jedlicka property on Mannheim Road, it was found that the highway was generally adequate for traffic needs without additional right-of-way. In view of these conditions, the Attorney General's office was advised on April 23, 1953, through our district office at Chicago, that case No. 41S-3192 in the Superior Court of Cook County should be dismissed. Accordingly, the case was dismissed on April 28, 1953.”

Subsequent to the dismissal, claimant filed, and there is still pending before the Superior Court of Cook County, a petition for damages provided by Section 10, Chapter 47,1957 Ill. Rev. Stats., which reads as follows;

“In case the petitioner shall dismiss said petition before the entry of such order or shall fail to make payment of full compensation within the time named in such order, that then such court or judge shall, upon application of the defendants to said petition or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by such defendant or defendants in defense of said petition, as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs.”

Respondent contends that the relief provided by the above statute is all that claimants are entitled to under the facts of this case.

Claimants on the other hand take the position that, because respondent prolonged the pendency of the proceedings for an unreasonable length of time after it knew the land would not be needed, respondent should respond in damages for the loss of rental incurred by claimants.

Both parties cite the case of Roach vs. Village of Wimietka, 366 Ill. 578, in support of their respective positions.

The court, in holding in favor of the condemner in that case, stated at page 586:

“All that is alleged, thereafter, to show a wrongful delay is the requests of appellants that the proceedings be completed and applications to the court to set down the disposed of matters for final determination. It is true it is alleged that counsel for the village stated that no one other than appellants wanted these matters finally determined, but the several continuances were granted by the court, and no abuse of discretion is alleged to have been induced by the appellee.”

The case of Winkelman vs. City of Chicago, 213 Ill. 360, relied on by claimants, is not in point, since the corporation counsel at that time had authority to determine when the case would be placed on call for trial. The court, in holding for the plaintiff, stated that, where it is ordinarily the duty of the property owner to take necessary steps to force a case to trial, because the corporation counsel had control of the trial calendar, the duty shifted.

Respondent cites the case of Howard vs. Illinois Central Railroad Company, 64 F. (2d) 267, involving a condemnation proceeding pending for ten years prior to dismissal. The court denied the property owner’s claim for damage, since there was no showing of malicious or wrongful conduct on the part of the condemner. The fact that many years were involved was insufficient to prove such conduct.

None of the cases called to our attention support claimants’ contention. We believe it would be an improper application of the law to allow recovery in a case such as this wherein claimants took no formal action to obtain either a trial or dismissal. To merely announce ready when the case is called and to offer no protest to the granting of a continuance is not sufficient action on claimants ’ part in seeking an end to the proceedings, and thus free their property from the effects of a pending condemnation action. Moreover, in continuing to negotiate with respondent from 1948 to 1953 on a price for the land, claimants indicated no great desire to terminate the proceedings so that they could rent their premises.

Claimants originally included in their action a claim for loss of merchantability of title during the pendency of the condemnation proceedings. They, however, voluntarily dismissed this portion of their claim during the hearing of the case due to the fact that the property in 1953 was worth more than when the action was instituted in 1941, and, consequently, no loss was involved.

We will not discuss the evidence pertaining to the loss of rental, inasmuch as we are denying this claim; nor, is it necessary to pass on respondent’s motion to strike the complaint, which motion was taken with the case.

The claim is hereby denied.

Opinion on Rehearing

The following petition for rehearing has been filed by claimants:

“The claimants, Louis R. Jedlicka and Mildred 'E. Jedlicka, respectfully petition for a rehearing of this cause, and in support of such petition show the following:
“In 1942, the Department of Public Works and Buildings of the State of Illinois completed the improvement of a highway adjacent to claimants’ property; restricting such improvement to the use of the existing right-of-way, and without availing itself of any of claimants’ property described in the pending condemnation suit instituted by the Department for the taking of land for such highway.
“In a report (respondent’s exhibit No. 3) made by the Division of Highways, it appears that, after construction of the section of the highway adjacent to the Jedlicka property, it was found that the highway was generally adequate for traffic without the additional right-of-way.’ This conclusion was reached in 1942.
• “The report of the Division of Highways then states that ‘in view of these conditions (the adequacy of the existing right-of-way) the Attorney General’s office was advised on April 23, 1953 . . . that (this case) . . . should be dismissed. Accordingly, the case was dismissed on April 28, 1953.’
Claimants submit that the Court, in its opinion, has overlooked the following matters of vital consideration:
1. The Department knew, in 1942, that it would not require claimants’ property; yet kept the condemnation suit pending for 11 years — until April, 1953 — before instructing the Attorney General to apply for dismissal of the suit.
2. The Department, notwithstanding it, knew that it did not intend to take the claimants’ property in condemnation, thereafter obtained a number of postponements of the trial of the case; and for a five year period between 1948 and 1953 carried on ‘negotiations’ for ‘acquisition’ of the property. These negotiations were carried on at a time when the Department well knew that it did not require, and would not take, the property.
3. Why did not the Department instruct the Attorney General, in 1942, to dismiss the condemnation suit? It is apparent that, when the Attorney General was finally instructed, on April 23, 1953, to dismiss the suit, he obtained dismissal in 5 days: on April 28, 1953.
4. Why did the Department ‘negotiate’ for acquisition of the property, from 1948 to 1953, when it never intended to take the property? The Department never informed claimants, at any time, of the conclusion it had reached in 1942, not to take claimants’ land; yet continued to negotiate for ‘acquisition’ of the land, from 1948 to 1953!
5. Is it not grossly unfair, perhaps bordering on fraudulent conduct, for a public officer to ‘negotiate’ for the taking of land subjected to a pending condemnation suit, when there is NO intent ever to take such land, and a conclusion has already been reached, in the public office, not to take the land?
6. May the Department of Public Works and Buildings create the appearance of an intention to take land; lull the property owner into the belief that such land will be taken, and that the condemnation case will proceed to a determination, if negotiations are unsuccessful; all the while knowing that it never intends to take the land? Is this the virtue expected of an agency of the State Government?
7. This Court should protect claimants against the bad faith and wrongful action of a department of the State government. Claimants, ready for trial at all times (except on one occasion in 12 years, when a two week continuance was obtained by claimants, because of illness in the family of counsel for claimants), were sorely disadvantaged, in dealing with a State agency, which acted in bad faith.”

In considering this petition, we find that claimants were not misled nor lulled into inaction by any act of respondent’s agents.

Claimants’ attorney was aware of the negotiations and position of respondent throughout the course of the proceedings, as appears from his testimony at pages 8 and 9 of the abstract of record:

“The Attorney General's office and Department of Public Works took no action in the period between 1942 and 1948 or 1949 to bring the case to trial. From the middle of 1942 until 1945 or 1946, I recollect no correspondence between our office and that of the Attorney General. There were negotiations between our office and the Attorney General. There were negotiations between our office and the Attorney General, some intermittent negotiations, between 1949 and 1953, with regard to possible settlement, but there was such a disparity in figures it appeared at no time we could have reached an agreement. One of the circumstances that seemed to prevent any negotiations was the lack of knowledge on the part of the Attorney General’s office as to whether the Department did or did not wish to take the premises in condemnation. Tire Department at times had intended to take it, and at times had the thought of not taking it.”

This does not establish a lulling of claimants into nonaction, but, on the contrary, would seem to prompt the taking of formal action if claimants wished to obtain an early disposal of the matter. No such action was taken by claimants, as we pointed out in our opinion.

Moreover, the statement of claimants in this petition to the effect that “the Department knew, in 1942, that it would not require claimants’ property” is not well taken. The only evidence on the question is that of claimants’ attorney, which we have already set forth above, and respondent’s exhibit No. 3, which is the Departmental Deport, dated May 25, 1954, a part of which reads as follows:

“Negotiations to acquire .538 acres, more or less, from Jedlicka failed. The Department instituted eminent domain proceedings on March 11, 1941.
“May 6, 1941, the Attorney General served defendants with notice that the case, 41 S 3192, Superior Court of Cook County, would be set for trial, on a date soon thereafter. A continuance was granted to the February, 1942 term. The Attorney General sought a hearing on February 18, 1942, but counsel for defendants asked for and was given a continuance. At that time construction operations were being carried on near the Jedlicka property, and it was vitally important that the Department know whether or not the desired tract of land would be acquired in a relatively short time. In addition, steel was in short supply.
“Rather than risk the possibility of a contractor not being able to secure the necessary amount of reinforcing steel bars, as well as other steel products, the Department authorized the contractor to proceed with the construction work along the Jedlicka property frontage. The work was completed and confined to the existing right-of-way. After construction of the section of highway adjacent to the Jedlicka property on Mannheim Road, it was found that the highway was generally adequate for traffic needs without an additional right-of-way. In view of these conditions, the Attorney General’s office was advised on April 23, 1953, through our district office at Chicago, that case 41 S 3192 in the Superior Court of Cook County should be dismissed. Accordingly, the case was dismissed on April 28, 1953.
May 25, 1954 Earl McK. Guy
Engineer of Claims"

Nothing here establishes the date the Division of Highways came to the conclusion that it no longer wished to acquire the land. We only know from this evidence that it was some time between the completion of the section of highway and April 23, 1953, five days before the dismissal of the action.

We do not feel that the evidence in this case establishes any bad faith or wrongful action on the part of anyone connected with the State of Illinois as contended by claimants. The petition for rehearing is denied.


author: Tolson, C. J.

text:
    (No. 4845
    Arcolino Egizii, d/b/a Egizii Electric, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1961.

    Gr. William Horsley, Attorney for Claimant.

      Grenville Beardsley, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On October 31, 1958, claimant, Arcolino Egizii d/b/a Egizii Electric, filed a complaint seeking an award of $655.00 for certain work done in the office of the Court of Claims of the State of Illinois.

The file in the case consists of the complaint, transcript of evidence, order waiving the filing of briefs, and the Commissioner’s Report.

The matter was heard by Commissioner Billy Jones, and, from an examination of his report, it appears that the claim is proper.

The Commissioner’s Report, in the following words and figures, is, therefore, adopted by this Court:

“This case is a claim brought by a Springfield, Illinois electrical firm in the amount of $674.00 for the installation of certain electrical fixtures in the Court of Claims offices in the Capitol Building in Springfield, Illinois.
“Claimant presented testimony that shows that he submitted a bid on May 21, 1957 in the amount of $674.00 for the installation of four — eight foot long fixtures and all accessory parts, material, and labor for the installation thereof; that the bid was accepted by respondent, the work was completed on September 10, 1957, a bill in the amount of $655.00 was submitted, which represented the original bid of $674.00 less $19.00 credit to claimant for the return of one switch, which was not used.
“Claimant presented testimony to show that the work was completed, was accepted by the respondent, was done in a workmanlike manner, and that the charges therefor were reasonable. Respondent offered nothing in the matter except to bring out on cross-examination that the work had been done by claimant in a satisfactory manner, and that the charges were reasonable and still due and owing to claimant.
Observation
“This is a case where there is no dispute of the facts. It is obvious that services have been rendered, that respondent owes for these services, and claimant should be paid.
Conclusion
“The Commissioner recommends that claimant be allowed the sum of $655.00 as prayed in the complaint.”

An award is, therefore, made to Arcolino Egizii d/b/a Egizii Electric in the amount of $655.00.


text:
    (No. 4872
    C. Mitchell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1961.

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

Claimant, C. Mitchell, has filed his complaint in this Court for property damages.

Respondent has not filed an answer, therefore, a general denial or traverse of the allegations of the complaint will be considered as filed.

On February 15, 1959, claimant owned a 1953 Buick automobile, which was being driven by Theodore Blanas, with the consent of claimant.

Two witnesses testified on behalf of claimant, namely, the driver of the car, Theodore Blanas, and a friend, who lived in the neighborhood where the accident happened, by the name of Martha Skan.

The facts briefly stated are that on February 15, 1959, Theodore Blanas, was driving claimant’s car in a southerly direction on Skokie Boulevard, about 500 yards north of its intersection with Grosse Point Road. At that location said highway is a four-lane highway with a painted line separating the northbound and southbound traffic. Skokie Boulevard is a public highway located in the Village- of Skokie, Comity of Cook, and State of Illinois.

The driver of the automobile testified that, at or about the hour of 10:00 A.M., he was driving claimant’s automobile in a southerly direction on said highway aforesaid. This automobile was owned by his father-in-law, and he had been driving it for several months, and had driven over the highway in question before. He stated he was in the center lane going south, and that Skokie Highway that morning was covered with snow and ice, and was wet. He further testified that there was one and three quarters lanes open for southbound traffic, and that there was not room for two cars to proceed on Skokie Highway. He further testified that, when he was approximately 60 feet away, he saw a hole in the road, which was approximately 3 inches deep and approximately 3 feet from the north to the south, and about the width of the car; that the hole was filled with ice, slush and snow; that he had been driving about 35 m.p.h., and, when he ran into the hole, he was going approximately 20 m.p.h.

He stated that his car skidded for a short distance, but that he did not leave the highway.

He stated that running into the hole damaged the following parts of the vehicle: tie rod was bent, stick was almost dragging to the ground, right front fender, right front bumper, hub cap, and the right side of the car was down, as though the spring was broken, and also damage to a tire.

From the record it is apparent that there were no warning signs, barricades, or any warning whatsoever advising the traveling public of the break in the highway. The hole in the highway was obscured by ice, snow and slush.

The highway had been in a defective condition and dangerous to the traveling public prior to Thanksgiving, which was a considerable length of time before the accident in question occurred.

Respondent did not offer any evidence to contradict the evidence offered by claimant. Claimant offered two exhibits, one of which was a paid repair bill covering the repairs to the automobile, which claimant contended was the result of the accident in question.

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. If the highways are in a dangerously defective condition, which might be hazardous to the traveling public, then respondent is obligated to erect barriers or signs warning the people traveling over said highway of any dangerous or defective condition.

The only evidence in the record as to the driving of the vehicle owned by claimant was that of the driver himself, Theodore Blanas, who testified that he was driving at the time he ran into the hole not to exceed 20 miles per hour; that, because of the ice, snow and slush, he was unable to see the hole until he was within a few feet of it, and that he did not strike any other object.

Respondent, in maintaining said highway by its agents, employed by the Division of Highways, either had actual or constructive notice that this highway was defective, and should have either repaired the hole or placed warning signs so that the traveling public could have governed themselves accordingly.

From the record we find that neither claimant nor the operator of his automobile, Theodore Blanas, was guilty of contributory negligence, but that it was the negligence of respondent’s agents, which was the proximate canse of the accident in question resulting in damage to claimant.

It is, however, difficult to understand, and there is no explanation of it in the record, as to how certain parts on said automobile, such as damage to grill and bumper, which are more than twelve inches from the ground, were damaged by running into the hole, the size of which was testified to by claimant’s witnesses. However, respondent did not go into these various matters, so that we would have anything other than claimant’s testimony and exhibits in passing upon the amount of damage done to claimant’s vehicle as the result of this accident.

Respondent could have, by cross-examination, brought out certain facts, which would eliminate any speculation on our part, but did not do so, and, therefore, we have no alternative but to pass upon the evidence, or lack of evidence, as we find it.

The Commissioner, who heard this case, had an opportunity of examining the witnesses, which he did, and examining the exhibits. He has made a recommendation that claimant be awarded damages in the full amount of $312.59.

It will, therefore, be the order of this Court that claimant be awarded a claim for damages to his automobile in the amount of $312.59.


text:
    (No. 4908
    American Indemnity Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1961.

    Gillespie, Burke and Gillespie, Attorneys for Claimant.

      William L. Guild, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, American Indemnity Company, A Texas Corporation, has filed a complaint in this Court for overpayment of its amiual privilege tax for doing business in the State of Illinois in the amount of $1,048.92. The overpayment was for the year of 1957.

On December 1, 1960, this Court entered an order on the joint motion of claimant and respondent for leave to submit this matter to the Court for consideration and opinion without the taking of evidence, or filing abstract and briefs, due to the fact that there were no disputed questions of law or fact in this case, and that no useful purpose would be served by the taking of evidence or the filing of abstracts and briefs.

The Director of the Department of Insurance has filed his report in this cause, which is as follows:

“1. That he is Director of the Department of Insurance of the State of Illinois, and that he caused a diligent search of the files and records pertinent to the above entitled matter to be made in his office, and hereby certifies that said files, books and records show the following facts:
A. That on June 18, 1958 a privilege tax statement for direct business for the calendar year of 1957 was filed by claimant with the Department of Insurance wherein that item No. 5 on page 2 of the statement under ‘Amount (if any) paid to cities, villages, incorporated towns and fire prevention districts of Illinois during the calendar year of 1957 as a tax on premiums for the benefit of organized fire departments' claimant listed the amount of $1,048.92.
B. That in calculating the retaliatory tax on the Texas basis, claimant listed on said statement the sum of $46,151.68, and inadvertently failed to take credit against said sum for the sum of $1,048.92 paid to the respective cities, villages, incorporated towins and fire prevention districts of Illinois during the calendar year of 1957 as a tax on premiums for the benefit of organized fire departments, as shown by the receipts therefor attached to claimant’s complaint filed in this cause.
C. That claimant was, therefore, duly assessed by the Department of Insurance in the sum of $46,151.68, which sum was paid by claimant to the Director of Insurance of the State of Illinois on June 18, 1958.
D. That it appears that under the provisions of Section 444 of the Illinois Insurance Code governing the assessment of retaliatory tax that said $1,048.92 having been assessed and paid under the laws of the State of Illinois, a net amount properly owing for privilege tax for direct business during the calendar year of 1957 would be $46,151.68 minus $1,048.92, or a net amount of $45,102.76, and that claimant has made an overpayment in the amount of taxes due in the sum of $1,048.92.”

A stipulation was entered into between claimant by its attorneys and respondent by the Attorney General as follows:

“It is hereby stipulated and agreed by and between claimant, American Indemnity Company, A Corporation, through its attorneys, Gillespie, Burke and Gillespie, and the State of Illinois, through William L. Guild, Attorney General of the State of Illinois, that the following documents are true and correct, and shall constitute the record in this cause:
1. Report of Department of Insurance dated August 4, 1960.
2. Complaint filed herein.
“It is further stipulated and agreed by and between the parties hereto that the Honorable Court of Claims of the State of Illinois may proceed to allow the claim of claimant in the sum of $1,048.92 on the basis of the foregoing record.”

Claimant is, therefore, awarded the sum of $1,048.92 for overpayment of privilege tax to the State of Illinois for the year of 1957.


text:
    (No. 4931
    American Mexican Petroleum Corporation, A Corporation of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1961.

    Henry L. Blim, Attorney for Claimant.
    William L. Guild, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

The claim of American Mexican Petroleum Corporation, An Illinois Corporation, is being submitted to this Court on the complaint and exhibits attached thereto, a stipulation entered into by claimant and respondent, by claimant’s attorney and William L. Guild, Attorney General, representing respondent.

An order was entered by this Court on a joint motion of claimant and respondent for the waiving of filing of briefs, and that the matter be taken under advisement on the complaint and stipulation.

The stipulation is as follows:

“This stipulation made by and between American Mexican Petroleum Corporation, An Illinois Corporation, claimant, by Henry L. Blim, its attorney, and the State of Illinois, respondent, by William L. Guild, Attorney General of the State of Illinois, representing said State of Illinois, as follows:
1. That the bid of said claimant to furnish two cars of asphalt filler to the Department of Public Works of the State of Illinois was accepted, and that thereafter said claimant furnished on Purchase Order No. 363709 one tank car of asphalt filler at the bid of $43.60 per ton, making a total of $1,062.21, which material was invoiced under date of May 25, 1959; that also the said claimant shipped to the State of Illinois, Division of Highways, a second car of said material at the same price per ton, at a total price of $1,057.61, which material was invoiced by claimant under date of May 28, 1959.
2. That through misadventure said invoices were misfiled or mislaid in the Office of the Division of Highways at Dixon, Illinois, and were not forwarded for payment prior to the expiration of the 1959 appropriation.
3. That the claim of claimant is just and proper, and should be allowed by this Honorable Court as a claim against the State of Illinois for the total amount of $2,119.82.
4. That claimant is still the owner of said claim, that no part thereof has been paid, that no assignment or transfer of said claim has been made by claimant, and that claimant is justly entitled to the amount hereinabove set out from the State of Illinois after allowing all just credits.”

An award is, therefore, hereby made in favor of claimant, American Mexican Petroleum Corporation, An Illinois Corporation, in the amount of $2,119.82.


text:
    (No. 4943
    The Ohio Casualty Insurance Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1961.

    The Ohio Casualty Insurance Company, Claimant, pro se.
    William L. Guild, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On October 26, 1960, The Ohio Casualty Insurance Company, A Corporation, filed a complaint seeking an award in the amount of $1, 788.68 for overpayment of its annual privilege tax for the years of 1958 and 1959.

The file consists of the complaint, Departmental Report, stipulation, motion and order to submit the case to the Court without the necessity of taking evidence or filing briefs.

From an examination of the Departmental Report and stipulation, it appears without question that claimant did overpay the privilege tax for the years of 1958 and 1959, as stated in its complaint.

This Court has considered the following cases involving similar claims for refunds due to the overpayment of privilege taxes, and, in each instance, an award has been made:

1. New Hampshire Fire Insurance Company, A Corporation, vs. State of Illinois, No. 4804

2. Calvert Firs Insurance Company, A Corporation, vs. State of Illinois, No. 4805

3. American Indemnity Company, A Corporation, vs. State of Illinois, No. 4834

4. Market Mens Mutual Insurance Company. A Corporation, vs. State of Illinois, No. 4809

It is to be noted that the Court of Claims Act was amended in 1957 in the following manner:

“All claims for recovery of overpayment of premium taxes or fees or other taxes by insurance companies made to the State resulting from failure to claim credit allowable for any payment made to any political subdivision or instrumentality thereof. Any claim in this category, which arose after July 16, 1945, and prior to the effective date of this amendatory Act, may be prosecuted as if it arose on the effective date of this amendatory Act without regard to whether or not such claim has previously been presented or determined. (As amended by Act approved July 11, 1957.)”

An award is, therefore, made to The Ohio Casualty-Insurance Company, A Corporation, in the amount of $1,788.68.


text:
    (No. 4719
    John Herbert Link, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

    Feed P. Schuman, Attorney for Claimant.
    William L. Guild, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On May 6, 1954, at or about the hour of 1:50 A.M., claimant, John Herbert Link, was involved in an automobile accident, allegedly due to negligence on the part of the State of Illinois to properly maintain the shoulder of State Route No. 35A, and failure to properly post with appropriate signs an alleged dangerous curve on said highway. As a result of the automobile accident, claimant now seeks to recover for personal injuries and damages to his motor vehicle in the sum of $7,500.00.

Some hours prior to the accident, on May 5, 1954, at or about the hour of 10:30 P.M., claimant, accompanied by bis wife, now deceased as a result of the accident, left their home, located in Granite City, Illinois, for the purpose of eating dinner at a restaurant known as “The Pines”, located in Collinsville, Illinois. Claimant was driving his 1951 Chrysler New Yorker club coupe automobile.

In order to reach his destination, claimant proceeded across a portion of the highway, known as State Route No. 35A, which is now in question. The evidence shows that the weather conditions on May 5, 1954, and the early morning hours of May 6, 1954, were clear, and that State Route No. 35A was dry.

Upon reaching the Pines Restaurant, claimant and his wife had one or two drinks, in addition to their meal, which caused them to stay at this location a period of some three or four hours. At approximately the hour of 1:30 A.M., on the morning of May 6, 1954, claimant and his wife began their journey home by following the same route, which they had proceeded upon to get to the restaurant.

At the time and place in question, claimant contended he was traveling at approximately 25 miles per hour, proceeding in a general southeasterly direction. While traveling on State Route No. 35A, a short distance from State Route No. 162, the right front wheel of claimant’s automobile left the highway. In an attempt to maneuver his vehicle back onto the paved portion of the highway, claimant lost control of his car, and, as a result, it turned over and rolled down a slight embankment on the left side of State Route No. 35A.

Claimant alleged there were weeds growing approximately three to four feet in height on both shoulders of State Route No. 35A. There was also considerable testimony by claimant that Route No. 35A, at the point of the accident, was inadequately marked, so as to notify users of the alleged dangerous conditions of the highway.

The law in the State of Illinois is clear that, in order for a claimant in a tort action to recover against the State, he must prove that the State was negligent, that such negligence was the proximate cause of the injury, and that claimant was in the exercise of due care and caution for his own safety. McNary vs. State of Illinois, 22 C.C.R. 328, 334; Bloom vs. State of Illinois, 22 C.C.R. 582, 585. It is also a well known proposition of the law that the State is not an insurer of all persons using its highways. McNary vs. State of Illinois, supra; Bloom vs. State of Illinois, supra. However, a person is not entitled to recover where the facts show he has been guilty of contributory negligence.

The doctrine of contributory negligence has been applied by this Court in the cases of Doolittle vs. State of Illinois, 21 C.C.R. 113, and Mounce vs. State of Illinois, 20 C.C.R. 268, which are similar in nature to the instant case. In the cases cited, the Court held that to approach a place of known danger without care commensurate with such danger is contributory negligence. Similarly, the Court held that, where one has earlier the same evening driven over a certain stretch of highway, he is charged with a knowledge of its condition so long as the condition is unchanged on his return trip.

The facts in the instant case show that claimant did travel across a portion of the highway in question a few hours prior to the accident, and, therefore, had or should have had knowledge of the condition of the highway at the place in question. The fact that claimant had knowledge of the condition of the highway is substantiated by claimant’s own testimony that he was traveling 25 miles per hour, which would appear to be a reasonable speed to negotiate a safe journey around the curve on State Route No. 35A. In view of the fact that claimant failed to show any intervening force, which caused his vehicle to leave the paved portion of State Route No. 35A, it must be concluded from the evidence that claimant was negligent in the management and control of his vehicle, and, as a result, this Court must necessarily find that the proximate cause of the accident was claimant’s negligence.

In view of the foregoing, the claim must be denied.


text:
    (No. 4744
    William R. Otto, Donald W. Houston and Edmond J. McShane, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1961.

      Petition of Claimants for Rehearing denied March 24, 1961.

    Michael F. Ryan, Attorney for Claimants.
    William L. Guild, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimants, William R. Otto and Donald W. Houston, prior to 1953 were employed under civil service as Weights and Measures Calibrators in the Department of Agriculture of the State of Illinois, and both worked in their respective positions until June 30, 1953.

On or about that date, claimants received a letter from Stillman J. Stanard, Director of Agriculture, as follows:

“The 68th General Assembly has discontinued the Division of Standards by legislative enactment, which will become law on June 30, 1953.
This letter is to call to your attention the fact that the Division of Standards, having been abolished by the Legislature, your connection with the State of Illinois will be severed as of that date. This letter is being sent to you at this time so that you may obtain your vacation period prior to June 1, 1953.
I, therefore, desire that you turn in to the Emerson Building, State Fair Grounds, Springfield, Illinois, all State-owned equipment in your possession on June 23, 1953; you will be receipted for this equipment.
Very truly yours,
WILLIAM J. STANARD Director”

Claimants made demands for reinstatement on March 12, 3 954, which were refused. Thereafter, claimants filed a complaint for mandamus in the Superior Court of Cook County, cause No. 54S3854, against Stillman J. Stanard, Director of the Department of Agriculture, the members of the Illinois State Civil Service Commission, Auditor of Public Accounts, and Treasurer of the State of Illinois. The complaint for mandamus was received in evidence as claimants’ exhibit No. 1. Claimants’ exhibit No.. 2 was the motion of the defendants named therein to' strike and dismiss. Claimants’ exhibit No. 3 was a judgment order in said cause entered in October, 1955, by Donald S. McKinlay, Judge of said court.

The Superior Court of Cook County found that claimants were removed from their respective civil service positions on June 30, 1953, and from said date were illegally prevented from performing the duties of said positions and receiving the salaries appropriated therefor until July 6, 1955, Avhen House Bill No. 1130 of the 69th General Assembly became laAV, which abolished the positions formerly occupied by claimants, rendering further issues in this cause moot and academic.

The Court further found that claimants Avere entitled to the salaries appropriated for and attached to their respective positions in the Department of Agriculture for the period from June 30, 1953 to July 6, 1955, less their earnings from other employment during said time, but that, because of the lapse of the biennial appropriation for said period on September 30, 1955, under the Constitution of the State of Illinois the court was without power to compel the payment of salaries by the writ of mandamus, which was prayed for in said cause.

Due to the findings hereinbefore set forth in said order, the cause was dismissed without prejudice to the claimants’ back salary rights.

Respondent did not file an answer setting forth any affirmative defense to the complaint, so, therefore, under the Rules of this Court, a general traverse or denial of all of the allegations of the complaint would be considered as filed.

Claimants and respondent have both filed exhaustive briefs setting forth many citations in support of their respective theories. It would unduly lengthen this opinion if we were to review all of the theories set forth, either in support of the claim or in opposition thereto.

The only question we have to decide covers a period from June 30, 1953 to July 6, 1955, when House Bill No. 1130 of the 69th General Assembly became law, and claimants’ positions were abolished.

If claimants were illegally prevented from performing their duties for the Department of Agriculture, which were civil service, then, in our opinion, claimants are entitled to recover their respective salaries, which were $315.00 a month from June 30, 1953 to July 6, 1955.

This Court and the Supreme Court have had occasion to pass upon similar situations involving civil service employees, who were illegally prevented from performing their duties. Poynter vs. State of Illinois, 21 C.C.R. 393; Smith vs. State of Illinois, 20 C.C.R. 202; People vs. Thompson, 316 Ill. 11; Schneider vs. State of Illinois, 22 C.C.R. 453.

As against the claim for hack salaries, this Court held in the case of Schneider vs. State of Illinois, 22 C.C.R. 453, that the burden is upon claimants to mitigate damages, and that all monies earned during the period of time from employment, but not investments, should be considered as a set-off against wages claimed because of unlawful dismissal from State employment. Poynter vs. State of Illinois, 21 C.C.R. 393; Kelley vs. Chicago Park District, 409 Ill. 91; Schneider vs. State of Illinois, 22 C.C.R. 453.

In regard to monies received by claimants from other employment and other sources, respondent contends that income from a farm owned by claimant, Donald W. Houston, should also be taken into consideration.

Mr. Houston leased his farm to his sons, who were farming for him on a fifty-fifty basis, and he did on occasions go to the farm in an advisory capacity, and did, also, do a small amount of work around the farm.

This is not the type of employment or income that this Court had reference to in the Schneider case, nor could it be considered in mitigating damages any more than dividends from stocks or interest received on notes or mortgages. "We make reference only to gainful employment and monies earned in other employment, whether for themselves or working for someone else, during the period of time referred to herein.

In arriving at claimants ’ earnings during the period of time from June 30, 1953 to July 6, 1955, we are not segregating the earnings by the month, whether more or less than their salaries of $315.00 a month, but are taking the entire earnings for that period of time and deducting the entire earnings from the salaries that they would be entitled to for that period referred to herein. Also, we are not going to enter an award for salaries unless claimants have proven that they attempted to find other employment, and, if there is no showing to that effect, there will be no award made for that period of time. We will only consider their salary and earnings from other employment from the date that they started to seek employment and were gainfully employed, as we do not believe that one can sit idly by and draw a salary without attempting to seek employment in mitigation of damages. If this were possible and legal, every employee under civil service so discharged would make no effort to find other employment. This was this Court’s holding in the case of Schneider vs. State of Illinois, 22 C.C.R 453.

In arriving at an award, first in the case of William R. Otto, he testified that he did not seek employment from July, 1953 until December, 1953, and that in December, 1953 he went into partnership with a friend of his in the electrical work, and that he remained in the partnership until August, 1954. He then worked for an electrician in Bloomington, Illinois, and after that employment went into business for himself as an electrical contractor.

The record is clear that claimant, William R. Otto, made no effort to mitigate damages or seek employment between the time of his discharge as a civil service employee to December, 1953. He is asking $315.00 a month for that period of time.

In arriving at a just award, and not purely by speculation, the record should be clear as to the total amount of earnings during the period from January, 1954 to July, 1955. The record is silent as to this. However, there is evidence that Mr. Otto earned from $150.00 to $600.00 a month when he was working, but he does not specify total earnings. Therefore, in order to make an award, we would have to speculate, which this Court cannot do.

Claimant, William B. Otto, testified, as is found on page 21 of the transcript: “ Q. But you did make sufficient money in other months, which would overcome this $315.00? A. Yes, I would say that is right.”

As to claimant, Donald W. Houston, his salary at the time of his discharge as a civil service employee, as a Weights and Measures Calibrator, was $315.00 a month. He worked until June 30, 1953, his position, too, being subject to House Bill No. 1130 of the 69th General Assembly.

Mr. Houston is making a claim at the rate of $315.00 a month from July 1, 1953 until December 31, 1953, or a period of six months. He testified that during that period of time he did not seek employment, and had no other employment. Therefore, we are disallowing any claim for that period of time.

Mr. Houston operated a farm on a fifty-fifty basis with his sons. However, the actual farming was done by the sons, and claimant only acted in an advisory capacity doing only a small amount of work.

In arriving at the amount of the award for Mr. Houston, we are computing his loss of earnings from January 1,1954 to December 31,1954 at $315.00 a month. This amounts to $3,780.00, and, less his earnings of $1,378.83 for that period, leaves $2,401.17. From January 1, 1955 to July 6,1955 is a period of six months. As computed at his salary rate of $315.00 a month would total $1,890.00, and, less his earnings of $946.01 for that period, leaves $943.99.

We, therefore, find that for the period of time for which we have computed his loss of earnings of $315.00 a month from the State, less his earnings, claimant would have due him the sum of $3,345.16.

As to claimant, Edmond J. McShane, who was one of the claimants at the time the complaint was filed in this Court, no evidence was offered on his behalf, so said claim was dismissed and is not being considered.

It is, therefore, the order of this Court that no award be made to William R. Otto, and that his claim be denied.

It is, therefore, the order of this Court that the claim of Donald W. Houston is allowed, and an award is made in the sum of $3,345.16.


text:
    (No. 4785
    William J. Quilty, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961.

    Herbert F. Friedman, Attorney for Claimant.
    William L. Guild, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

An amended complaint was filed by William J. Quilty on June 11, 1958 alleging that on October 27, 1955 he was employed by the Chicago, Rock Island and Pacific Railroad Company at the Burr Oak Yards near Prairie Street, at or near the City of Blue Island in the County of Cook and State of Illinois. At or about the hour of 10:30 A.M., while claimant was standing in said yards near or underneath the viaduct overhanging said yards, a piece of concrete weighing about twenty-five pounds fell from the viaduct, a distance of approximately forty feet, and struck his riglit hand, injuring the little and ring fingers.

At said time respondent’s agents of the State Highway Department, being about 20 to 25 in number, were working on said viaduct in the process of repairing it, and were using air hammers. In the process of breaking the concrete on the viaduct, a piece was dislodged, and fell upon claimant, injuring the little and ring fingers on his right hand.

Attached to the amended complaint was an amended bill of particulars, wherein it was set forth the amount of damages claimed.

The record consists of the following:

1. Complaint

2. Amended bill of particulars

3. Amended complaint, together with attached amended bill of particulars

4. Transcript of evidence

5. Motion of claimant for leave to waive the filing of brief

6. Order of the Chief Justice granting the motion of claimant for leave to waive the filing of brief

7. Motion of respondent for leave to waive the filing of brief

8. Proof of service of a copy of the motion of respondent on counsel for claimant

9. Order of the Chief Justice granting the motion of respondent for leave to waive the filing of brief

10. Commissioner’s Report

The Commissioner heard this case on June 10, 1958, and August 5, 1958, and the only evidence offered by claimant and respondent was that of claimant.

There seems to be no dispute as to the facts of the alleged occurrence, nor any question as to the contributory negligence of claimant. However, it does appear that claimant lost a considerable length of time for the nature and extent of injuries, which the Commissioner so found.

Claimant was taken to St. Francis Hospital. His little finger was limp. The ring finger was bleeding, and the nail was off. In accordance with the medical report introduced by claimant, being claimant’s exhibit No. 2, it was found that there was a chipped fracture of the posterior articular margin of the distal phalanx of the right little finger, with a fragment displacement of about 3 mm. posteriorly. The ring finger was not broken. A splint was applied to the little finger, and gauze was applied to the ring finger. Claimant returned to work, and he was treated by Dr. Daily the following day.

Claimant testified that he visited Dr. Dally at least seven or eight times, and that he had a great deal of pain in the little and right ring fingers. From the medical report, no heat treatments were prescribed by the doctor, nor were any pills prescribed for pain.

The doctor and hospital bills were paid by the railroad company. Claimant also received $200.00 from said company, and gave them a covenant not to sue.

At the time of the accident, claimant was earning approximately $14.63 a day. From November 16 to November 30, 1955, he was unable to work, losing approximately twelve working days, amounting to $175.56. He testified that he was off work from December 1, 1955 to December 8, 1955, inclusive; and from December 27,1955 to January 10, 1956, inclusive; that his absence from work was the result of the accident and the injuries to the fingers on his right hand.

On December 1, 1955, his rate of pay was $16.29 per day, for which he is claiming an additional $517.65 for lost wages.

It appears to us that claimant lost an excessive amount of time as the result of the injuries of the nature sustained by him. However, all that we have to pass upon is the testimony of claimant. There is no cross-examination of him, nor any Departmental Report filed, nor does respondent offer any testimony whatsoever.

The Commissioner found that no subrogation claim is being made by the railroad company for its expenditures on behalf of said claimant.

As previously stated, inasmuch as there is no question as to liability of respondent, or any cross-examination of claimant, or Departmental Report filed, the sole question to be passed upon by this Court is the question of damages to be awarded.

The only evidence we have is that claimant lost $693.21 in wages as the result of this accident.

It is, therefore, our order that the claim should be and is hereby allowed in the sum of $1,000.00.