author: Pezman, J.

text:
    (No. 4791
    Matthew M. Walsh and John J. Walsh, A Co-Partnership, d/b/a Walsh Construction Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    Graham, Wise and Meyer, Attorneys for Claimant.
    William G. Clark, Attorney General; Samuel J. Boy and Lawrence W. Reisch, Jr., Assistant Attorneys General, for Respondent.
   Pezman, J.

On September 30, 1957, claimants filed their original complaint seeking an award in the amount of $151,549.89 for losses, alleged to have been sustained by them in the construction of certain buildings at the Tinley Park State Hospital, Tinley Park, Hlinois. On April 24, 1959, claimants filed an amendment to the complaint by adding-additional items to the bill of particulars, and thereby increasing the ad damnum to $216,788.61.

The above entitled cause was heard by a Commissioner on December 19, 1958 at Chicago, Illinois. Claimant, Matthew M. Walsh, was the sole witness for claimants. Respondent’s evidence consisted of the Departmental Report. On the 2nd day of June, 1959, the Court on its own motion found that the record was inadequate and insufficient for a proper consideration of the cause and of claimants ’ damages, and ordered the matter heard ££en banc”. The cause was heard in 1960 by the Court of Claims, consisting of Judge Gerald W. Fearer, Judge James B. Wham and the late Joseph J. Tolson, Chief Justice.

Since the facts of the case are extremely complex, a preliminary statement identifying the separate contracts, the location of the buildings, and the problems confronted are hereafter set forth.

Prior to June 1,1951, the State of Illinois determined that a new hospital was needed, and a large tract of land, formerly a farm, was purchased near Tinley Park, Illinois. The firm of Skidmore, Owens and Merrill of Chicago, Illinois, was engaged as associate architects to prepare plans and specifications, and thereafter bids were taken for the proposed work. The project involved multiple bids for the different kinds of work to be performed, and claimants were the successful bidders on three of the jobs.

1. Contract No. 66921 — Power Plant-__________________________$370,411.00

2. Contract No. 6748 — Water Treatment Plant_______ 334,000.00

3. Contract No. 6745 — Sewage Treatment Plant._______ 227,000.00

The work was commenced at a time when the Korean War was in progress, and the matter of obtaining priorities for needed material was of great significance in the performance of the contracts.

For the purpose of clarity, each of the jobs will be identified by its number and discussed separately, and thereafter a summary of each claim will be set forth in a recapitulation.

CONTRACT NO. 66921

POWER HOUSE

The plans and specifications called for the construction of a two story brick and glass building, together with a full basement and smaller brick building located nearby.

Matthew M. Walsh testified that he examined the plans and specifications, and, prior to May 1, 1951, went out to the site to examine the premises, so that he could prepare a bid. (The plans were in accordance with usual practices, requiring a bidder to inspect the site, as he would thereafter be charged with knowledge of bidding-conditions.) An access road was under construction at the time, and he stated, though it was rough, he could and did drive over it to the area where the contracts were to be performed, if his firm was the successful bidder. The contract for the road had been let at a prior time, and was to be finished in 45 days, so that the other contractors would have access to the interior of the farm land to perform their work.

Claimants submitted their bids on May 5, 1951, and the State extended the time for acceptance to June 30, 1951, as the road was incomplete. Mr. Mocardell, Chief of Construction, assured claimants that the road would be completed when construction started. The road was not completed in the 45 days, and, in fact, was not completed until 1956 due to a peat condition, which was discovered in the road bed.

Claimants lay great stress on this absence of an access road, as their bid was predicated on the plans, which described the road in the blueprints, and their examination of the building site, which showed the road under construction, and their assurances that a hard road would be ready for them to haul in steel, concrete, etc., needed in the performance of their contract.

On July 10, 1951, claimants started the excavation of the basement, and completed it on August 17, 1951. Wooden perimeter forms were set so that the concrete floor could be poured.

At this state of the construction, plumbers should have been installing drains, and electricians should have been installing conduits, and, if this had, in fact, been done, the entire floor would have been in place by September 4,1951.

It was then discovered that the plans for plumbing and electrical work were incomplete, and Mr. Gilbertson, Field Superintendent for the State, stopped the pouring of the concrete.

While claimants waited for the State to procure plans and specifications for the plumbers and electricians, who were bidders on separate contracts, torrential rains hit the area, and claimants were obliged to pump the excavation for many days, and thereafter to remove and clean the reinforcing steel, remove and wire brush the steel rods, reset and realign the forms.

On October 5, 1951, claimants were directed to pour the slab despite the fact that the electrical conduits were not in place. At this point, claimants allege that the State was negligent in not having plumbing and electrical plans available, so that the work could have been performed a month earlier, and, if they had been available, claimants would not have had to pump the excavation, and re-do the work that was in place ready for concrete.

On October 25, 1951, claimants started work on the walls. This work was stopped by the State, as the electrical plans were still incomplete, and no provisions were made for sleeves for the pipe contractor.

Claimants made repeated efforts to get the State Architect and the associate architect to complete the drawing, so that they could continue with the work. Months went by, and it was not until March 5, 1952 that claimants were authorized to proceed with the work. The basement concrete was not finished until April 24, 1952, many months behind the schedule.

The slab floor and walls had been poured with reference to the location of the steel to be erected on the area built up for a certain type of diesel motor and generator. It appeared that the electrical contractor was given the option to install another type of equipment, and, when he exercised his option, the slab had to be altered, footings had to be cut, the roof had to be altered, and changes had to be made in the type and kind of steel.

Claimants urge that the State should have inquired as to the type of electrical equipment to be installed before directing claimants to comply with the original plan, and thereby avoided the additional work.

In summarizing Contract No. 66921, claimants allege that they bid the job, so that it could be completed in 360 working days, i.e., June 30, 1952. They allege that the State failed to provide other contractors with plans and specifications on time, so that their work could be correlated into his contract. They allege that changes in the plans threw their work schedule behind, so that they did not complete the building until June of 1954, and that they incurred great expense because of the neglect of the State.

CONTRACT NO. 6745

SEWAGE TREATMENT PLANT

Claimants were the successful bidders on the treatment plant, as their bid was accepted on July 20, 1951. The contract was to be completed in 360 days.

The excavation was started, but on August 1, 1951 they were instructed to suspend operations due to a pending revision of plans. On November 23, 1951, claimants were instructed not to have any steel fabricated for the sewage plant, as further revisions were being made.

On March 26, 1952, claimants began the excavations for the main control house, when peat was discovered. The architects directed claimants to halt operations. Work was again started, and the basement and walls were completed on July 1,1952. When claimants requested the structural steel, it was found that none was available, and the steel did not arrive until November or December of 1952.

Since the structure could not be placed under roof, due to the absence of steel, the rains, mentioned previously, filled the basement twice, and required days of pumping.

Claimants allege an unwarranted delay of nine months in furnishing plans as to all buildings, except the trickier filter, and, as to this structure, the delay was 13 months.

Claimants further allege the State was responsible for a four month delay in furnishing steel.

CONTRACT NO. 6748

WATER TREATMENT PLANT

This contract called for the construction of a control house, a water softening basin, a reservoir, 3 pump houses, and a water tank. Claimants’ bid was accepted on July 20, 1951 with work to be completed in 360 days.

Despite the contract, a series of revisions were made by the architects, so that the work did not get underway for 23 months. The revised plans called for work that was not included in the original contract, and the claim for damages is summarized in the recapitulation.

Claimants in their brief have set up their claims under certain categories, as they affected all three contracts, and, for purposes of expediency, they were set forth as follows:

BOX-OUTS AND SLEEVES

All of the buildings constructed under the three contracts required pipes to be inserted in the outer walls for water, steam, sewage, etc.

Box-outs are forms inserted in the walls prior to the pouring of concrete, which are thereafter removed, so that sleeves may be placed in order that pipes may be inserted inside the sleeves.

If the plans had been completed properly and on time, the box-outs would have been installed when the forms were set, and the walls would have been poured in the conventional manner.

For reasons that were never explained by the architects at the hearing, the plans were totally deficient as to type, size, and location of these box-outs, and, after the walls were poured, claimants were instructed to go back and cut the walls, frame, brace and grout, and install the box-outs.

As to this element of damage, the State has admitted its error in the plans, and the work was thereafter ordered to be performed by claimants. The summary of this claim is as follows:

No. 66921 — Power Plant
Constructing box-outs __________________________________________________$675.54
Forming, bracing, grouting __________________________________________578.13
No. 6754 — Sewage Treatment Plant
Constructing box-outs ______________________________________________6,530.69
Forming, bracing, grouting _______________________________________5,881.55
No. 6748 — Water Treatment Plant
Constructing box-outs _________________________________________________1,853.98
Forming, bracing, grouting ___________________________________________2,167.48
Total ____________________________________________________$17,687.37

With respect to this claim, Mr. Gaunt, Chief of Construction for the State of Illinois, was requested by the Department of Public Welfare, to prepare a cost breakdown of the claim. He testified that, in his opinion, the amount of damages sustained was $13,748.18.

LACK OF ACCESS KOAD

As was mentioned earlier in the opinion, the plans showed an access road, which was under construction in May of 1951. This contract was let on January 9, 1951 with a completion date of 45 days. Due to the peat condition encountered, the road was not completed until 1956, and was, therefore, unavailable to claimants.

Claimants allege they bid the job on the assurances that the road would be available, and, therefore, arrived at a figure using batch ■ concrete at a cost of $8.50 per cubic yard.

The only other road available was a farm lane, and in wet weather this road became a sea of mud.

Claimants allege that they were unable to move trucks into the field to prepare batch concrete, and were compelled to buy ready-mix concrete at a cost of $10.75 a yard, a difference of $2.25 per yard. They were only able to accomplish this by hooking a bulldozer to the ready-mix truck, and pulling it to the job site.

The three contracts called for 7,200 yards of concrete, 1,500 yards of which were batch concrete, and the balance was ready-mix. •

Claimants allege that they rented a bulldozer for 162 days at a cost of $80.00 per day to pull the ready-mix trucks through the fields.

Claimants also allege that they were obliged to truck their employees to and from the job site due to lack of roads with the attendant loss of working time.

As further proof of undue delay on the part of the State, claimants allege that repeated requests were made upon the State to secure the necessary priorities for steel. Mr. Gaunt testified that it was the responsibility of the State to get the priority, but for some reason the State neglected to do so.

The amended complaint summarizes the balance alleged to be due claimants as follows:

Power Plant—
Increases in the cost of labor and materials, supervision, overhead, insurance, etc., on Contract No. 66921______$31,396.31
Water Treatment Plaint—
Increases in the cost of labor, materials, supervision, overhead, insurance, etc., on Contract No. 6748_______________25,851.78
Sewage Treatment Plant—
Increases in the cost of labor, materials, supervision, overhead, insurances, etc., on Contract No. 6754_______19,825.72
Pumping of excess water from farm drainage systems, Contract No. 66921___________________________________________________8,351.70
Pumping of excess water from farm drainage systems, Contract No. 6748 ____ 7,530.60
Pumping of excess water from farm drainage systems, Contract No. 6754 _______________________________________________________5,117.70
Additional labor necessary to complete Contract No. 66921 ____66,492.60
Additional labor necessary to complete Contract No. 6748 __________________________________________________________________________37,193.30
Additional labor necessary to complete Contract No. 6754 _______________________________________________35,028.90
Total ______________________________________________________________236,788.61
Paid by respondent on above______________________________20,000.00
Balance due ____________________________________________________________$216,788.61

When this case was tried before the Court, claimants discovered that certain payroll records were duplicated on some of the exhibits, and, to conform to the proofs, the ad damnum was reduced from $216,788.61 to $166,053.43.

Mr. J. N. G-aunt, Supervising Architect, testified as an adverse witness for claimants and as a direct witness for the State. He confirmed generally the allegations of claimants as to unreasonable delays, failure to provide plans and specifications on time, changes in plans, failure to obtain priorities, increases in the cost of labor and materials throughout the building period, but he denied the rights of claimants to the profits on the work done, as prayed for in the amended complaint. He summarized

his estimate of their losses as follows:

(a) Box-out openings --------------------------------------$ 13,748.18
(b) Increased cost of concrete and materials to the job ____________________________________________________ 25,875.00
(c) Increased cost of direct expense_____________ 17,100.00
(d) Increased cost of labor and materials__________ 27,747.88
(e) Additional labor based on Vi of the claim____________ 25,941.07
Total ________________________________________________________$110,412.13

This case has been tried twice, once before the Commissioner, and again before the Court en banc. The record is voluminous, and hundreds of exhibits have been introduced in the case. It is difficult to summarize the many facets of the case, but, in general, it appears that there was a great need for a hospital facility, and the State decided to build it at the time despite shortages. The general contracts were let before the plans and specifications of the sub-contracts were in bidable form. The most glaring error in the all-over program was the lack of available drainage for the project. This, coupled with unprecedented rains, did more to increase the costs of the contracts than any other matter.

The State has admitted from the outset that claimants were entitled to additional compensation, but it is apparent from the testimony that this project, with all its complexities, developed ill will between the associate architect, the State Architect’s Office and claimants to the point where it was impossible to review and adjust these differences while records were available in the respective offices.

The State has acknowledged the errors and omissions on its part, and concludes that claimants are entitled to additional compensation in the amount of $110,412.13.

Claimants allege that they need not prove their claim with mathematical certainty, and state that they furnished the associate architect and the State with numerous receipts and invoices that would prove their claim, but that such records were lost or misplaced by them; so that they were not available to claimants when requested.

The Court does not believe that such alleged loss of records by the State should excuse claimants from keeping adequate records of their own, and in this regard the Court will not speculate on damages that are alleged by claimants.

It further appears to the Court that claimants have engaged in institutional building for a number of years. When the innumerable problems arose, a prudent contractor would have stopped the job until the several contracts were in shape, so that the work would be done in accordance with good building practices, and, since they failed in this regard, they must share in part of the responsibility.

This Court has held that, where a contractor has been prevented from performing his contract by the State, an award will be made for the increased costs necessitated by the delay. Divane Bros. Electric Co., A Corporation, vs. State of Illinois, 22 C.C.R. 546.

Where it appears that a contractor was damaged by reason of a change of plans by the State, an award will be made, and, if extra work is ordered, a claimant will be entitled to an award. Hyre Electric Co., An Illinois Corporation, vs. State of Illinois, 22 C.C.R. 555.

The State is liable for actual damages sustained by a contractor arising from unreasonable delays caused by the State. Bosley Wrecking Company, An Illinois Corporation, vs. State of Illinois, 23 C.C.R. 126.

On the basis of the above authorities, the Court finds that an award should be made to claimants.

Pursuant to motion on behalf of claimants, the suggestion of death of John J. Walsh on the 25th day of September, 1961 was entered of record, and it was ordered by this Court that the suit proceed in the name of Matthew M. Walsh d/b/a Walsh Construction Company.

An award is, therefore, made to Matthew M. Walsh, d/b/a Walsh Construction Company, in the amount of $110,412.13.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 4951
    Barnabas F. Sears and William S. Bodman, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    William J. Lynch, Attorney for Claimants.
    William G. Clark, Attorney General; Bernard Genis and Edward A. Berman, Assistant Attorneys General, for Respondent.
   Pezman, J.

The case at hand was brought by Barnabas F. Sears and William S. Bodman to recover an award from the State of Illinois for the legal services they performed, pursuant to an appointment by the Attorney General of Illinois, in representing the Auditor of Public Accounts and the Director of Financial Institutions in protracted and rather heavily complex litigation resulting from a custodial seizure by the Auditor of Public Accounts of a savings and loan association.

Mr. Sears seeks an award for services he performed as a Special Assistant Attorney General from November 1, 1957 to June 6, 1960. Mr. Bodman requests an award for his services as a Special Assistant Attorney General for the period from October 1, 1957 to April 18, 1960.

On April 25,1957, the Auditor of Public Accounts of the State of Illinois, Elbert S. Smith, pursuant to the applicable provisions of the Illinois Savings and Loan Act, took custody of the City Savings Association, a savings and loan association, located in Chicago, Illinois. City Savings, at that time, had some twenty-six thousand (26,000) share-holders, and assets in excess of Thirty-Five Million Dollars ($35,000,000.00). Less than a week after custody of City Savings was taken by the Auditor, an action was filed by the Association (later amended to include its officers) to enjoin further custody by the Auditor. The litigation eventually involved numerous other parties in that and other related legal proceedings.

On May 2, 1957, two days after the complaint was filed by City Savings, the Attorney General wrote to Mr. Sears and Mr. Bodman, and appointed them Special Assistant Attorneys General to represent the Auditor of Public Accounts in the litigation relating to the custody of savings and loan associations seized by the Auditor. Since the appointment by the Attorney General is of basic importance to this Court in its consideration of the cause, we will set forth in complete detail at this time the two letters of appointment.

EXHIBIT A
LATHAM CASTLE ATTORNEY GENERAL State of Illinois 160 North LaSalle Street Chicago 1, Illinois
May 2, 1957
Barnabas F. Sears, Esq. Attorney at Law One North LaSalle Street Chicago 2, Illinois
Dear Barney:
You are hereby appointed Special Assistant Attorney General for the purpose of representing Honorable Elbert S. Smith, Auditor of Public Accounts, in litigation relating to the custody of building and loan associations by the Auditor of Public Accounts, and in relation to the confirmation of appointment of receivers of building and loan or savings and loan associations.
Your service as Special Assistant Attorney General is to be compensated otherwise than out of the appropriation for the office of the Attorney General. You will be paid either from funds of the savings and loan association to which the litigation relates, as authorized by law, or out of the appropriation for the office of the Auditor of Public Accounts.
Very truly yours, (Signed) Latham Castle Latham Castle Attorney General
EXHIBIT B
LATHAM CASTLE ATTORNEY GENERAL
State of Illinois 160 North LaSalle Street Chicago 1, Illinois
May 2, 1957
W. S. Bodman, Esq. Attorney at Law 120 West Adams Street Chicago, Illinois
Dear Mr. Bodman:
You are hereby appointed Special Assistant Attorney General for the purpose of representing Honorable Elbert S. Smith, Auditor of Public Accounts, in litigation relating to the custody of building and loan associations by the Auditor of Public Accounts, and in relation to the confirmation of appointment of receivers of building and loan or savings and loan associations.
Your service as Special Assistant Attorney General is to be compensated otherwise than out of the appropriation for the office of the Attorney General. You will be paid either from funds of the savings and loan association to which the litigation arises, as authorized by law, or out of the appropriation for the office of the Auditor of Public Accounts.
Very truly yours, (Signed) Latham Castle Latham Castle Attorney General

The record shows that Mr. Sears and Mr. Bodman immediately embarked upon the performance of their duties as counsel for the Auditor of Public Accounts. As a result of the nature of the litigation in which they became involved while representing the Auditor, and the ancillary proceedings, which arose from the primary action, Mr. Sears and Mr. Bodman were required to and did devote a substantial amount of their time during the following three years to the performance of their duties as Special Assistant Attorneys General. In the first 18 months during which the Mensik litigation was pending, claimants worked day and night on the litigation and related matters. Because of the emergency nature of the litigation and the great amount of time required, it appears that they had little time left to devote to the usual business of their law firms. They have testified at length before this Court concerning the nature and extent of the services they performed, and the time consumed by them in representing the Auditor and later the Director of Financial Institutions, who succeeded the Auditor as Administrator of the Savings and Loan Act.

Each claimant regularly, and in accordance with his usual standard office practice, maintained a detailed time record of the work and services performed for his client. The same procedure was followed by them in the MensikCity Savings matters. Detailed compilations of the time records mentioned above were admitted in evidence during the hearings in the Court of Claims as exhibits Nos. 3 and 21. A copy of exhibit No. 3, indicating in some detail Claimant Sears ’ time and services, is attached to the claim filed with this Court as a Bill of Particulars, as is a copy of exhibit No. 21, which serves as a Bill of Particulars of the time spent by Mr. Bodman. These exhibits adequately reflect the elements of time and effort expended by these men. Claimant Barnabas F. Sears asks for $59,243.75 as the reasonable value of his services for the period from November 1,1957 to June 8,1960. Claimant William S. Bodman seeks the sum of $34,790.00 as the reasonable value of his services for the period from October 1, 1957 to April 18, 1960. Claimant Sears was. paid for his services, as well as for the services rendered by 'his associates, who worked on various phases of the litigation under both claimants’ supervision, for the period from May 2, 1957 to October 31, 1957. Claimant Bodman was compensated for his services to October 1, 1957. Payment of the sum of $63,000.00 for legal services rendered by claimants to those dates were made from the funds of the Association at the direction of the Auditor, and were later approved by the Supreme Court in its final decision in the Mensik case as reported at 18 Ill. 2d 591.

Claimants base their case upon the theory that, pursuant to a contract of retainer, they performed substantial legal services for which they have not been compensated, and for which the State would, in law, be liable, if it were not a sovereign entity, and those services were performed. As a natural result, claimants also contend that the amounts set forth are the usual, customary and reasonable fees for the services performed, and that Claimant Sears is entitled to be compensated for the services performed by his associates under the direction and supervision of both Mr. Sears and Mr. Bodman.

Respondent in its original brief and argument never denies the claimants’ contract for retainer as a basis for recovery, but spends a great deal of time upon the idea that the Court has the right to determine for itself how much time a certain litigation took, or should take; how much time is reasonable to put into certain litigation; and, in asserting that claimants ’ associates were not requested to perform any legal services by the State of Illinois, and that, therefore, there could be no recovery for those services rendered by the associates of Mr. Sears, since the appointment was a personal appointment of both Mr. Sears and Mr. Bodman to represent the Auditor of Public Accounts.

This Court will not expend much time or effort in considering the last two points of contention between claimant and respondent. The integrity and character of both Mr. Sears and Mr. Bodman are unimpeachable. This Court does not question that the services in fact alluded to by claimants were performed, nor does this Court doubt that the services rendered to the Auditor of Public Accounts and the Director of Financial Institutions were valuable. There were many protracted Master’s hearings and court hearings, all of which terminated in a decree whereby inter alia the Circuit Court undertook the supervision of the City Savings Association. There was an appeal to the Supreme Court upon an extensive Master’s Report, which was dismissed by a divided Court for want of a final judgment. There was active representation of the State Auditor and later the Director of Financial Institutions by claimants during the period the Court was supervising the Association. When a final decree was entered, there was another appeal to the Supreme Court. In addition, there were four separate mandamus petitions prepared by claimants. The first raised more or less technical questions with respect to the parties, and the motion for leave to file was denied. The second was prepared after the Court had entered a decree undertaking the supervision of the savings and loan association, and presented, among other things, important constitutional questions as to the separation of powers. Motion for leave to file this petition was allowed, and respondent was ordered to answer. Thereafter the Supreme Court, on its own motion, vacated its order allowing leave to file, and entered an order denying such leave. The third petition was prepared after the trial court had refused to enter a final order, and, although a motion for leave to file the petition was denied, the order denying it granted leave to file a fourth petition. The fourth petition was prepared, and was filed pursuant to leave granted. The petition was argued before the Supreme Court, but that Court never had to decide the case, because a final order was entered.

This Court will give little weight or credence to the contention of respondent that Claimant Sears is not entitled to recover for the services performed by his associates. The Court of Claims, in the case at hand, is primarily interested in two isolated questions of prior importance. Let us consider those questions first.

1. Did the Attorney General have the authority to retain Claimants Sears and Bodman as Special Assistant Attorneys General? The Attorney General is the only State Official empowered to conduct the law business of the State. This precedent was clearly established in the case of Fergus vs. Russell, 270 Ill. 304, and acts to confirm the constitutional authority granted by Sec. 1 of Art. V of the Constitution, as well as the common law authority carried by the title, Attorney General. Because of this common law and constitutional authority as the chief legal officer of the State, the Attorney General has the inherent power to appoint Special Assistant Attorneys General. This is again reaffirmed in Saxby vs. Sonnemann, 318 Ill. 600, and was recently reaffirmed in the case of The People vs. Toll Highway Commission (May, 1954), 3 Ill. 2d 218. In the Toll Highway Commission case, the Supreme Court held as follows:

“The tenth, and final, objection concerns itself with the right of the Commission to employ counsel under subsections 6 (d) and (e) of the Act. It is contended that these subsections violate Sec. 1 of Art. V of the State Constitution. Those sections authorize the Commission to appoint assistant attorneys by and with the consent of the Attorney General, and to retain special counsel subject to the approval of the Attorney General. It is expressly provided that such assistant attorneys and special counsel shall be under and subject to the control, direction and supervision of the Attorney General, and shall serve only at his pleasure. This Court has held that the establishment of the office of Attorney General, under Sec. 1 of Art. V of our Constitution, endowed that office with all of its common law powers and duties. We have further held that neither the General Assembly nor the judiciary can deprive the Attorney General of any common law power inherent in that office. An inherent power of the Attorney General is the exclusive prerogative of conducting the law business of the State, both in and out of the courts, except where the State Constitution or a constitutional statute may provide otherwise.”

2. Recognizing that the Attorney General has the power and the authority to appoint Special Assistant Attorneys General, the basic problem remains as to whether or not, when an Attorney General appoints a special assistant, he is obliged to pay him from his appropriation for special assistants, or can obligate the State of Illinois generally to make such payments when there is no appropriation providing for such payment or any other method with which to provide such funds. What happens to our normal inquiry as to whether or not such funds had in fact been appropriated, and were available for the purpose desired at the time that the contract of retainer was entered into? In the case at hand the Attorney General, realizing that both Mr. Sears and Mr. Bodman' would and should be paid for their services to the Auditor of Public Accounts and State of Illinois, indicated in the letters of appointment that their compensation would be payable from one of two sources. Those letters state as follows:

“Your service as Special Assistant Attorney General is to be compensated otherwise than out of the appropriation for the office of the Attorney General. You will be paid either from funds of the savings and loan association to which the litigation relates, as authorized by law, or out of the appropriation for the office of the Auditor of Public Accounts.”

If the State of Illinois were not a sovereign entity, the letter of appointment of the Attorney General would constitute the contract of retainer. The letters expressly provide for the method of payment to claimants for services rendered. The record in the case at hand does not disclose that there was ever, during any of the time that legal services were rendered by Claimants Sears and Bodman, an apropriation for the office of the Auditor of Public Accounts for the payment of legal services, nor has there ever been such an appropriation for the office of the Director of Financial Institutions. Thus we see removed the possible payment for these services out of the appropriations for the offices of the Auditor of Public Accounts and the Director of Financial Institutions. In the Mensik-City Savings case in the Circuit Court of Cook County, the trial judge ruled in November of 1957 that no further payment of attorneys ’ fees could be made from the funds of the Savings and Loan Association. It is true that claimants were paid for their services from funds of the Savings and Loan Association for periods prior to those claimed herein. Our Supreme Court in Mensik, Et Al, vs. Smith, 18 Ill. 2d 572, confirmed the payment of previous fees to Sears and Bodman, but ignored the question of payment of any further fees in its final decision. Thus we see that it was not possible for claimants to be paid from funds of the City Savings Association after November, 1957. In the case before us, Claimants Sears and Bodman now seek recovery from the State of Illinois, through the Court of Claims, for services rendered without an appropriation for the payment of the same.

In Fergus vs. Brady, 277 Ill. 272, the Supreme Court stated:

“By Sec. 19 the General Assembly is prohibited from authorizing the payment of any claim, or part thereof, created against the State under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts are null and void, with the exception that the General Assembly may make appropriations for expenditures incurred in repelling invasion or suppressing insurrection.”

The Court further states:

“In Sec. 19 claims under any agreement or contract made by express authority of law are excepted, and, if there is some particular and specific thing which an officer, board or agency of the State is required to do, the performance of the duty is expressly authorized by law. That authority is express, which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority, which is general, implied or not directly stated or given.”

The rule in Fergus vs. Brady remains undisturbed by later cases.

In the “Coal Products” cases, (Schutte and Koerting Compamy, Et Al, vs. State of Illinois, 22 C.C.R,. 591), this Court held as follows:

“We, therefore, hold that the Singh Company and Dr. Singh were the agents of the Illinois Coal Products Commission, and had the authority to bind the Commission in purchasing the materials for the pilot plant if, and only if, the Commission had the power and authority to make the purchases at that time.
“With respect to this question, it is fundamental that all governmental agencies, departments and commissions are strictly circumscribed in their powers and authorities by the Constitution and statutes of the State of Illinois.”

This Court goes on to cite from Fergus vs. Brady, 277 Ill. 272, much of the same language given above.

In the “Coal Products” cases, this Court held:

“In the first place, if such had been the legislature’s intention, it would have simply and plainly stated such intention (the right of the State to ‘purchase the products’ of the unauthorized agreements at an agreed price. (Explanation Supplied.)
“In the second place, the appropriation prohibits the Auditor from making any disbursements unless the Court of Claims in the ordinary conduct of its powers of settling claims against the State of Illinois has rendered an award. This Court’s authority and power is subject to the Constitution and laws of the State of Illinois. We could not, if we wished, disregard any statutory or constitutional provision. We have no power to either restrict or extend the power of the legislature to pay claims against the State.
“The Supreme Court in Fergus vs. Russell, 277 Ill. 20 at page 25, stated: ‘The Court of Claims is a statutory body not provided for in the Constitution, and its action can have no effect upon the power of the legislature to pay claims against the State. If the legislature has no such power in any case, favorable action by the Court of Claims would not give the legislature power to pay such claim by making appropriations therefor. If it has the power to pay claims, it cannot be deprived of it by an unfavorable action on such claims by the Court of Claims. The power or lack of power to appropriate money to pay claims depends upon the Constitution and not upon the action of the Court of Claims.
“It necessarily follows then that, in order to properly perform our function, we should not render a decision recommending the payment of a claim, which is clearly prohibited by the Constitution.”

In the cause at hand the Attorney General did not in fact provide a method for payment of compensation to claimants under the contract of retainer except as specified in the letters of retainer, and the Attorney General did explicitly and expressly deny Claimants Sears and Bodman the right to he paid from the Attorney General’s appropriation. Claimants could only look to the City Savings and Loan Association or the appropriation for the office of the Auditor of Public Accounts for payment. There was no appropriation for the Auditor’s office for this purpose, and there had never been such an appropriation, as we have related above.

The fact that the Circuit Court of Cook County stopped any further payments of fees to claimants from City Savings and Loan funds cannot be likened to the factual situation, which exists when there is a lapsed appropriation. There was no lapse of an appropriation of a department or division of the State of Illinois. Where a lapse of an appropriation occurs, the funds are returned to the “General Bevenue Fund” of the State of Illinois. There is no possibility of a lapsed appropriation in the case at hand.

With no appropriation in the office of the Auditor of Public Accounts available, there is no claim for legal fees based upon a contract with the State of Illinois. The claims for services rendered are hereby denied.


author: Perlin, C. J.

text:
    (No. 4992
    Esther Hargrave and Charles E. Hargrave, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    William D. Hanagan and Wham and Wham, Attorneys for Claimants.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General for Respondent.
   Perlin, C. J.

Claimants, Charles E. Hargrave and Esther Hargrave, seek the sums of $500.00 and $25,000.00, respectively, for damages arising out of a collision on February 25, 1961 between an automobile driven and owned by Charles E. Hargrave, in which Esther Hargrave was riding as a passenger, and a truck owned and operated by the State of Illinois.

Claimant Charles E. Hargrave testified as follows:

At approximately 6:20 A.M. on the above mentioned date, claimant was driving his 1954 Buick Sedan in a southwesterly direction on State Route No. 148 south of Mt. Vernon, Illinois, en route to Cobden, Illinois. His mother, Esther Hargrave, was riding with him as a passenger in the front seat of the automobile. The purpose of the trip was to transport Mrs. Hargrave to a doctor’s appointment in Cobden, Illinois.

Route No. 148 was a two-lane highway. There was ice and snow in spots on the road. When claimants reached a point just south of Mason Road, a State of Illinois Highway truck, with a snowplow attached, was cleaning the highway, traveling south toward Walton-ville on Route No. 148. Hargrave made several attempts to pass the truck, honked his horn and flashed his lights, but could not get around it, because claimant alleges the truck was not completely on its own side of the road. After the third attempt to pass the truck, Hargrave dropped back approximately 175 feet behind the truck waiting a chance to pass. As he followed the truck, he observed that the snowplow blade was scraping ice and snow off the highway; debris was flying from the blade, and it was making a rumbling noise. Both he and the truck were allegedly driving at 40 miles per hour. As he continued to follow the truck at this speed, the truck came to a sudden stop, and Hargrave’s car slid into the back end of the truck. As a result of the collision, Esther Hargrave was injured, and the Hargrave car was damaged. It was learned after the collision that the snowplow had fallen off the truck.

The driver of the truck, Virgil Bushong, testified that he saw claimant’s headlights in the rear view mirror for approximately a mile before the accident, but did not observe him attempting to pass. He stated that the truck headlights, blinker light on top of the cab, cab lights, and three cluster lights in the back of the cab were lighted, and no portion of the truck or equipment had crossed the center line in the opposite lane of traffic. He estimated that he was going 18 or 20 miles per hour at the time, but did not know his exact speed, since his speedometer was broken. This was the first time he had operated the truck and the plow together. Bushong further testified that after the collision the pin that holds the framework of the snowplow was sticking over the center line of the road approximately 4 inches. He had never inspected the framework before this collision. He did not know what had happened except that the truck came to a sudden stop, and the snowplow probably became disconnected before the impact.

Donald Peterson, section foreman, was a passenger in the State truck at the time of the collision. He testified that the truck came to a sudden stop on the pavement, and ran up over the frame of the snowplow before it came to a stop. The center bolt that fits the frame of the plow to the truck was missing, and he looked for the bolt, but could not find it after the accident. The snowplow frame, which is located underneath the truck, was in place when the truck was received that morning. He also guessed the speed at 18 to 20 miles per hour, and said that they had been told by the State Engineer never to exceed that speed. He did not notice anyone trying to pass the truck.

Respondent submitted some evidence by way of the Departmental Report and testimony by Donald Raney, Maintenance Field Engineer for the State of Illinois, that the truck in question had been inspected in October, 1960. However, it is indicated that the frame holding the snowplow is not installed until after inspection of the truck.

Raney testified that the center holt is one of the items that the operator should check “just like oil”, but that no instructions for checking it are prescribed. The truck involved was a utility truck, and the maintenance department installs the snowplow frames. In such trucks, Raney stated, no specific individual is charged with the duty of installation.

Claimants allege that respondent was negligent in its duty to exercise reasonable care in the operation and maintenance of its vehicles. They argue (1) that the truck came to a stop on the road, and the snowplow frame came off, because of the improper operation of the truck and snowplow; or, (2) that something was wrong with the snowplow frame, which caused it to come off.

In support of their first contention of improper operation, claimants argue that the truck was proceeding at a speed of 40 miles per hour in violation of instructions not to exceed 18 to 20 miles per hour when using the snowplow. Testimony by respondent’s witnesses that they were within the 18 to 20 miles per hour limitation must be discounted, claimants argue, since both witnesses testified that this was a guess only, as their speedometer was broken. Claimants further contend that the added stress to the snowplow frame caused by the higher speed could have caused the frame or bolts to give way, thus causing the truck to suddenly stop. Claimants point out that there is no evidence that the snowplow or snowplow frame was properly installed, or that respondent’s agents inspected the frame and its parts after it was installed on the vehicle.

The parties have stipulated that “at the time of the occurrence the vehicle was under the control of the State on State business, and at the time of the accident the State had the exclusive possession and control of the truck, snowplow and its component parts, and that at the time of the occurrence respondent was in the exclusive control of the operation of the equipment through an employee.”

Claimants allege that the doctrine of res ipsa loquitur should be applied in the instant case. This doctrine holds that, when an injury is caused by an instrumentality under the exclusive control of the party charged with negligence, and is such as would not ordinarily happen if the party having control of the instrumentality had used proper care, an inference or presumption of negligence arises. The burden then rests upon respondent to rebut the presumption of negligence arising from the facts of the case.

Respondent claims that this was an £< unavoidable accident.” It is the opinion of the Court that the doctrine of res ipsa loquitur is properly applied in the case at hand, since, if proper care had been used, a snowplow frame does not ordinarly fall off a truck causing the truck to come to a sudden stop. Respondent did not rebut the presumption of negligence, which arises upon such a happening. Respondent did not prove that proper care was applied in installing, inspecting or operating the truck with the snowplow. In fact, a broken speedometer prevented an assured maintenance of the speed recommended by the authorities in charge. We conclude that the State was negligent in the maintenance and operation of this vehicle.

To recover in this action, claimants must prove by a preponderance of the evidence that not only was respondent negligent, but that claimants were free from contributory negligence. (Ill. Rev. Stats., Chap. 95½, Sec. 158, provides that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent.)

Claimant Charles E. Hargrave was well aware of the presence of the State vehicle, having followed it for several miles. Evidence shows that the truck was well-lighted, with a blinker light on top of the cab, and cluster lights in the rear. It was established that snow had been falling, although it had stopped by the time of the collision, and that there was scattered ice and snow on the highway. Claimant testified that he was approximately 175 feet behind the truck, traveling at 40 miles per hour when the truck stopped.

According to the “Driver’s Manual”, prepared by the U.S. Treasury Department, a car with excellent brakes traveling at 40 miles per hour will require for stopping a distance of 128 feet on dry pavement, 171 feet on wet pavement, or 311 feet on ice or packed snow. In view of the hazardous condition of the highway, it is our opinion that claimant did not clearly prove that he exercised due care for his own safety. Therefore, the claim of Charles E. Hargrave for recovery for property damage to his car is hereby denied.

Respondent argues that any contributory negligence of Claimant Charles E. Hargrave should be imputed to Esther Hargrave, since the sole purpose of the trip was to take her to the doctor’s office. Esther Hargrave did not pay for any part of the trip, and there is no evidence that this was a joint enterprise in which the negligence of the driver of the vehicle is imputed to a passenger. Neither is there any evidence that Esther Hargrave was herself contributorily negligent merely because she did not warn her son about the distance between the automobile and the truck.

As a result of the accident, Mrs. Hargrave was confined to the hospital from February 25 until March 11, 1961, with, among other injuries, a fracture of the right patella, and contusions and abrasions to the forehead. Her forehead was healed at the time of the hearing, but is sunken at the point of laceration. Dr. Charles Wells testified that he performed an operation on the fractured patella, and that there was soft tissue injury in and around the knee in addition to the bone injury. He stated that the injury is at times painful, and is apparently permanent. She has difficulty in maneuvering stairs, and must use her left leg first. He stated that whirlpool baths given to Mrs. Hargrave is in accord with standard practice in this type of injury.

Dr. Edward Stephens, who examined Mrs. Hargrave, testified that a complete loss of flexion and extension of the leg is expected with a reasonable degree of medical certainty. He would recommend a fusion operation for the purpose of relieving the pain.

Mrs. Hargrave testified that before the accident she was able to do all of her housework, and as a result of her injuries it was necessary to hire temporary household help. She further testified that she runs a power sewing machine in her work, and had earned $1.52 per hour, but now earns, on the average, $1.48. At the time of the accident her average pay was $53.20 per week, and she missed sixteen weeks of work. She complains of pain in both her legs. She does most of her housework, but cannot get down on her knees to scrub floors, and the like, as she did before the accident.

Mrs. Hargrave stated that she received $500.00 from the company, which insured her son’s car, based on the medical pay clause of his policy.

According to claimant’s bill of particulars and the evidence presented, Mrs. Hargrave has incurred $1,764.55 in actual damages. She has apparently suffered a degree of disfigurement and a partial loss of normal use of her right leg as a result of the accident. (Her earnings from her work, however, do not appear to be demonstrably affected.)

The Court hereby awards Claimant Esther Hargrave the sum of $6,500.00.


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    (No. 5004
    Martha J. Thriege, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    John T. Dickinson and Chester Thomson, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Martha J. Thriege, seeks recovery in the sum of $5,000.00 for personal injuries allegedly suffered on May 14, 1961, when she fell in a museum, which was owned and operated by the State of Illinois.

Mrs. Thriege testified as follows:

She is 73 years old. About 4:30 B.M. on the day in question she arrived at the David Davis Mansion in Bloomington, Illinois, accompanied by her niece and her granddaughter. She entered the premises by walking up several steps into a vestibule. She crossed the vestibule, and walked one step up into the mansion. She visited in the mansion about 20 or 30 minutes. As she came out and approached the step to the vestibule, she saw a rubber pad floor covering, which protruded about 2 inches over the step or riser. She says she did not know that the mat was hanging out over space, but rather it looked like part of the step. She stepped on that portion of the mat, which protruded over the riser, and fell. She wrenched her ankle, but was prevented from falling to the floor by her two companions. She sat down for a short time, and was subsequently assisted to her car, and went home. Upon arrival at home, she called Dr. Fred Cunningham, who came to the house that evening. She went to the hospital the following morning, and spent 6 days there. Her treatment consisted of ice bags and medication. She returned to the mansion before the hearing, and noticed that the vestibule mat now had a white line over it. She wears glasses, but does not know whether she had them on at the time of the accident. She came out of the mansion the same way she went in, and, therefore, must have walked on the mat in both instances.

Mrs. Harry Johnson testified that she was employed as custodian of the David Davis mansion. The mansion had been open to the public since February, 1961. She saw Mrs. Thriege in the mansion on the day in question, and guided her through the home in a group of people. She saw Mrs. Thriege and the two girls, who accompanied her, when they came downstairs. “I was standing at the table where the registration book is located, and she (Mrs. Thriege) was ready to move out, and I said, ‘there is a step there. ’ She missed the step. The two girls had preceded her. They were already down in the vestibule, and she followed the two girls down the step.” Mrs. Johnson saw Mrs. Thriege turn her ankle. The two girls were standing at Mrs. Thriege’s side. Mrs. Johnson and the girls then helped Mrs. Thriege to a chair. Mrs. Johnson described the step as being made of wood, and rising about 5 inches, with a corrugated mat on top of it, which extended to its edge. The vestibule was lighted by sun coming through double glass doors. It was a bright day, and there were also lights on in the hallway.

Mary Pittman, one of claimant’s companions at the time of the accident, testified that the mat or pad was extended over the end of the step a few inches, and looked like the end of the step. She stated that no one had warned them of the condition of the riser, or the position of the riser or step, as they came out of the mansion. She had stepped down into the vestibule at the time Mrs. Thriege fell.

Mrs. Thriege’s twelve-year-old granddaughter, who had also accompanied claimant to the mansion, testified that no one had warned her grandmother about the step. She had seen the step when she entered the mansion, and had come down it without difficulty. When her grandmother tripped, she grabbed hold of her and kept her from falling to the floor.

In order for claimant to be entitled to an award, she must prove the following elements by a preponderance of the evidence: (1) that respondent was negligent; (2) that such negligence proximately caused her injury; and, (3) that claimant was in the exercise of due care for her own safety, and, therefore, free from contributory negligence.

Respondent contends that claimant assumed the risk of a known condition, such as the step in question, and cites the case of Davis vs. State of Illinois, 22 C.C.R. 11, in which claimant had climbed a stairway alleged to have irregularities in it, and later that evening fell upon descending the same stairway. The Court denied recovery, because it could not be said that claimant was unaware of the nature of the stairway, having ascended it earlier in the evening.

In the opinion of this Court, claimant has failed to establish that she was free from contributory negligence. She was, or should have been aware of the existence of the step, which she had crossed just 20 or 30 minutes previous to the time she fell. The custodian testified that she warned Mrs. Thriege of the step, although Mrs. Thriege and her companions say they were not aware of this warning. The companions walking with claimant had immediately preceded her down the step, and should have been aware of its existence.

Claimant has not established that respondent had actual or constructive notice of the defective condition, which is alleged to have caused her injury. Such notice of such condition would be a necessary requisite precedent to recovery in the negligence action herein.

In the opinion of this Court, claimant has failed in her burden of proof, and her claim is hereby denied.


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    (No. 5006
    City of Murphysboro, Illinois, A Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    Richard E. White, Attorney for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Pezman, J.

This cause relates to damage to property in the City of Murphyshoro, Illinois, owned by Willie D. Harris and Bnrchay Harris, his wife, and adjacent to South Fourth Street in the said City of Murphyshoro.

On June 11, 1954, the City of Murphysboro, Illinois, a Municipal Corporation, passed and adopted a Resolution whereby the City requested and authorized the State of Illinois to enter into an Agreement with the municipality for the construction, relocation and reconstruction of a public street, known as Fourth Street in the City of Murphysboro. This Resolution was approved by the State of Illinois, Department of Public Works and Buildings, on November 7, 1956.

Among other things, the Resolution provided that the State of Illinois, acting by and through its Department of Public Works and Buildings, Division of Highways, should secure the necessary rights of way, prepare detailed plans, and construct the improvement without cost to the City of Murphysboro.

The Harris property is located on South Fourth Street, one-half block south of the main highway improvement known as S.B.I. Route No. 13, Section 12-1, Jackson County. The full extent of the improvement is from Carbondale to Murphysboro.

Prior to construction of the improved S.B.I. Route No. 13, Section 12-1, Jackson County, the Willie and Bnrchay Harris’ residence was on an even level with Fourth Street, said Fourth Street being the frontage street of their home. Following the reconstruction and relocation of said Fourth Street, the Harris home is now at least twelve feet below the level of said street, and it is no longer possible to have direct access by drive to their home from said street. Claimant contends that Willie Harris and Burchay Harris, as a result of such improvement, were further deprived of air, light and view by obstruction created by the raised Fourth Street.

In October, 1958, a suit was filed in the Circuit Court of Jackson County, Illinois, by Willie D. Harris and Burchay Harris against the City of Murphysboro, Illinois, in which it was alleged that plaintiffs’ property had been consequentially damaged. Following a trial by jury in February, 1960, the Circuit Court of Jackson County entered judgment against the City of Murphysboro, in the amount of $2,275.00 and costs of suit in the amount of $25.30, making a total judgment of $2,300.30.

The City of Murphysboro has paid the amount of the judgment, and has not been reimbursed for this payment. The City was provided with a release of judgment, which has been filed in the office of the Circuit Clerk of Jackson County, and has been recorded in Book 60 on page 528.

Claimant contends that, pursuant to an Agreement with the Department of Public Works and Buildings, Division of Highways of the State of Illinois, certain construction of roadways and streets was to be undertaken by the State of Illinois. Acting under this Agreement, the State of Illinois commenced the construction and completed the same. As a result of this construction project, the law suit hereinbefore referred to was filed against claimant. Claimant undertook to defend said law suit in good faith, giving proper notification to the State of Illinois of the pendancy of the law suit within plenty of time for them to have acted upon the matter of defense. The facts in the case reveal that the State was notified on or before October 15, 1958 of the cause in the Circuit Court of Jackson County, Illinois, and that agents of the State assisted the attorney for claimant in preparing the defense to that original action. The case was tried in 1960.

The alleged Agreement between the City of Murphysboro and the State of Illinois is encompassed by the Resolution attached as exhibit A to the original complaint. This Resolution specifically provides that the Division of Highways of the State of Illinois shall “secure the necessary rights of way, prepare detailed plans, and construct the improvement without cost to the City of Murphysboro”, and “arrange for the adjustment of all public and private improvements. ... all of the above enumerated work to be done without cost to the City of Murphy sboro.” Testimony of J. L. Burnett, District Right of Way Engineer for the Division of Highways, discloses that the State paid for all the rights of way in the total construction project, and that the construction was to be without cost to the City. He further testified that the State did not purchase a right of way from the Harris property, because, in the opinion of the Division of Highways, there was no damage to the Harris property. In his testimony Mr. Burnett admitted that the State had not paid the Harrises for any right of way previous to the decision of the jury in the case of Harris vs. City of Murphysboro in the Circuit Court of Jackson County, Illinois.

The Department of Public Works and Buildings has the authority to enter into contracts with municipalities for the construction and maintenance of highways within the corporate limits of any municipality. This Department is also vested with the right to acquire property rights necessary for the construction of highways within the corporate limits of any city. The agreement between the City of Murphysboro and the State of Illinois is clearly established by the Resolution, which is made a part of the evidence in this case.

Respondent does not contend against the facts as related herein. Singly important and uncontroverted is the fact that the State of Illinois made no effort to obtain a right of way from Will D. Harris and Burchay Harris prior to the construction.

Whether the City of Murphysboro was the agent of the State of Illinois, or the State of Illinois was the agent of Murphysboro is immaterial. We find that there was an Agreement between both parties for the construction and relocation of certain roadways and streets, including South Fourth Street, in the City of Murphysboro, Illinois. Said Agreement provided that such construction would be without cost to the City of Murphysboro. The failure of the State of Elinois to obtain a right of way from Willie D. Harris and Burchay Harris prior to the construction has resulted in cost to the City of Murphysboro, as a result of the verdict of the jury in the cause in the Circuit Court of Jackson County, Illinois, in February of 1960.

An award is, therefore, made to claimant in the sum of $2,300.30.


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    (No. 5015
    City of St. Louis, A Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    Thomas J. Neenan, Thomas F. McGuire and Gary M. Gaertner ; and Hotto, Fielder and Marsh, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

The City of St. Louis, Missouri, seeks recovery of $591.46 for property damage incurred at Lambert-St. Louis Municipal Airport, owned by claimant, when Captain E. H. Ramshaw of the Air National Guard of the State of Illinois, flying an Illinois National Guard F-84 jet aircraft fighter plane, attempted to make an emergency landing on said airfield, May 7, 1960.

E. H. Ramshaw testified as follows:

On May 7, 1960, he was on duty as a member of the Illinois National Guard. He was under orders to fly from Peoria, Illinois, to Gulfport, Mississippi, for a routine training mission, and then to return to Peoria. He had previously flown the particular aircraft in question. He took off from Peoria, Illinois, and about 18 minutes later, when he had reached the City of St. Louis, and was at an altitude of 38,000 feet, he experienced a complete engine failure. Rather than bail out, he elected to attempt an emergency landing at Lambert Airport.

Ramshaw notified the airport of his predicament by radio, and proceeded to the airfield by the most direct route. He was losing altitude, and had lost the electrical system, hydraulic system, speed brakes, flaps and landing gear. He had no power in the aircraft. He approached the runway 180 degrees opposite the direction he had originally intended. As he approached the runway, there was inadequate opportunity to decelerate. As he touched the ground, he pulled the drag chute, which is a device underneath the rear fuselage of the jet used as a braking device. When the aircraft hit the runway, the landing gear was not down because of lack of hydraulic pressure, and the aircraft went out of control on the runway. ‘ ‘ Then I went off the runway to the right, and the fire started, and I went through a dyke and other obstacles into a taxiway and across another runway.”

Eamshaw left the aircraft while it was still moving and on fire. He did not know what damage was done to the airport facilities at the time of the landing. He had experienced no difficulty on the take-off or until the time when he was over St. Louis. When he took off from Peoria, the aircraft was in good shape according to all check lists, which are performed by the pilot. Inspection of records following the accident indicated that the engine trouble started with the failure of the rear main bearing.

All F-84’s were allegedly grounded after the accident until the main bearings were replaced with a different type of bearing.

The Departmental Eeport, signed by Adjutant General Leo M. Boyle, stated that Captain Eamshaw was forced to make an emergency landing at Lambert Field “resulting in the accident and the damages stipulated.” It further stated that the official investigation of the accident established that the primary cause of the accident was material failure.

Arthur K. Muchmore, assistant airport manager at Lambert Field, testified that damage to the airport property as a result of the landing totalled $591.46, which included $223.20 for a high intensity light, $352.50 for a six section taxiway guidance sign, and four hours of labor at $3.94 per hour.

Claimant urges that the doctrine of res ipsa loquitur be applied in the instant case. The Court of Claims has recognized this doctrine as follows: When an injury is caused by an instrumentality under the exclusive control of the party charged with negligence, and is such as would not ordinarily happen if the party having control of the instrumentality had used proper care, an inference or presumption of negligence arises. The burden then rests upon respondent to rebut the presumption of negligence arising from the facts of the case. (Hargrave vs. State of Illinois, No. 4992.)

In the case of Northwestern National Insurance Company vs. State of Illinois, No. 4950, this Court applied the doctrine to an accident where a target being towed by an airplane operated by the Illinois National Guard fell from a cable, causing damage to claimants’ property. Because the State offered no evidence to rebut the presumption of negligence raised by the facts, recovery was allowed.

In the instant case, the airplane, which caused the damage, was under the sole management and control of respondent’s agents. It must be assumed that, in the ordinary course of events, the accident would not have happened, if those who were in control or management used proper care. Respondent has offered no evidence to rebut the presumption of negligence, which arises under the facts.

Therefore, claimant is awarded the sum of $591.46.


text:
    (No. 5025
    Ann Biel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.
    Wolfberg and Kroll, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant filed her claim herein seeking recovery for personal injuries suffered by her resulting from negligence of the State of Illinois. Claimant alleges that the State negligently allowed and permitted a certain manhole cover, immediately adjacent to the curb line, to remain in such a state of disrepair, as to create a hazard in the street; and further alleges that this hazardous condition was one, which remained uncorrected for an extended period of time, and of which the State had both actual and constructive notice. Claimant further alleges that the State was in control of a certain public highway, known as 95th Street, in the Village of Evergreen Park, Illinois, and had the duty to maintain such highway in a reasonably safe condition; that claimant, while in the exercise of due care and caution for her own safety, fell into said hazard, and sustained numerous and serious personal injuries, for which she is attempting to recover from the State of Illinois.

The transcript of evidence discloses that, on the morning of the accident, July 18,1961, claimant was walking in a westerly direction on 95th Street at or near 2600 W. 95th Street, Evergreen Park, Illinois, en route to her employment at Little Company of Mary Hospital, Evergreen Park, Illinois. An automobile, in which three of her co-workers were riding, stopped alongside of her to give her a ri.de to the hospital. As she stepped off of the curb for the purpose of entering the said automobile, her right foot went through the broken manhole cover, which was in the street adjacent to the curb. Several rungs and part of one rung of said manhole cover were missing. Claimant’s right leg entered said manhole past her knee. Her left leg broke her fall into the manhole.

One witness, William Eiler, testified as to the condition of the manhole. He stated his address was 2644 W. 94th Street, Evergreen Park, Illinois, which is three to four blocks from where this occurrence took place. He testified that the condition of the broken manhole cover existed in March or April of 1961, approximately 60 to 90 days before the accident. He stated that he had occasion to walk by this particular corner 2 or 3 times a week. He further testified that he had reported the broken manhole cover to the Evergreen Park Police.

Claimant contends that the State of Illinois was negligent in allowing a hazard, created by a broken manhole cover, to remain in the highway, and failing to warn of such hazard; and further contends that the State of Illinois had both actual and constructive knowledge of the hazard, which was created by the broken manhole cover. On the other hand, respondent contends that claimant failed to establish her claim by a preponderance of the evidence, and failed to exercise that degree of care, which befitted the circumstances, and should have seen the broken manhole cover, if she had properly exercised her faculty of sight.

The transcript contains no evidence that claimant was guilty of contributory negligence. Prior to the accident, claimant was walking along the street, and had no occasion to observe the condition of the curb or the guttering. Her attention was attracted by the sounding of the automobile horn of her friends, and she watched the car, as she waited for it to pull over to the curb to allow her to step in. Her action cannot be characterized as negligent.

Both parties agree that the State is not an insurer of all persons using the highways, and respondent does not deny that claimant suffered the injuries alleged, nor does respondent anywhere deny that the manhole cover was defective.

The question of negligence on the part of the State of Illinois in the maintenance of manhole covers is not new to the Court of Claims. (Couchot vs. State of Illinois, 21 C.C.R. 157, and Mayes vs. State of Illinois, 23 C.C.R. 93.) There is no question of the duty of the State of Illinois to maintain the manhole cover in proper repair for the safety of persons and vehicles upon the highway. The evidence indicates that the State had constructive notice of the condition of the manhole cover for a period of time, so as to charge respondent with negligence in failing to maintain it. In cases where there is a defect, which was either known, or could have been ascertained by reasonable inspection, and which would cause damage to persons or property upon said highway, the State would be negligent.

Claimant suffered contusions, lacerations, ecchymosis and bruises over the lower right extremity in the area of the thigh, knee and right ankle. Medical testimony indicates some scarring of the right leg. There is some evidence of injury to the left extremity resulting in varicosity. Medicals introduced amount to $120.00.

An award is, therefore, entered in favor of claimant, Ann Biel, in the amount of $750.00.


text:
    (No. 5116
    Socony Mobil Oil Company, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    Giffin, Winning, Lindner and Newkirk, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Pezman, J.

On June 25, 1963, the Socony Mobil Oil Company, Inc., A Corporation, filed its complaint seeking an award in the amount of $806.43.

The complaint alleges certain sales made to the Department of Public Works and Buildings of the State of Illinois, now unpaid for, amounting to $417.44, and certain other sales made to the Department of Conservation of the State of Illinois, now unpaid for, in the sum of $388.99, being an aggregate total of net sales to both of said departments, now unpaid, in the amount of $806.43. Claimant further alleges that statement in the form of invoices or schedules for such sales were submitted in the regular and due course of business to each of said departments, respectively, but not until after the several appropriations from which the same might have been paid had lapsed, and, for that reason, payment therefor has not been made.

On February 24, 1964, a Departmental Report was filed indicating that no part of the bills to either department had been paid by either department, or by any division of either department, or by any other State agency, for the reason that the bills were not presented, scheduled and processed until sometime after September 30, 1961, when the 71st biennium appropriation had lapsed. The Departmental Report further states that each of the items was purchased by persons having proper authority, and was received in good condition, and that the charges, as itemized, are true and correct.

As a result of this report, on the same date, February 24,1964, a joint stipulation of fact was filed by claimant and respondent reciting in substance that the Departmental Report shall constitute the record in the cause of action. The stipulation further indicates that its purpose was to avoid the necessity of presenting testimony.

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

Continental Oil Company, A Corporation, vs. State of Illinois, 23 C.C.R. 70

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

An award is hereby made to the Socony Mobil Oil Company, Inc., A Corporation, in the amount of $806.43.


author: Dove, J.

text:
    (No. 5121
    Material Service Division of General Dynamics Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    Schradzke, Gould and Ratner, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grosman, Assistant Attorney General, for Respondent.
   Dove, J.

The claim, as set forth in the complaint filed herein, is based upon contracts for work and materials furnished by claimant to the Division of Highways of the Department of Public Works and Buildings of the State of Illinois, and work and materials actually furnished by claimant to the said Division of Highways, which contracts are evidenced by, and which work and materials were billed on invoices attached to the original complaint.

On December 2, 1963, a stipulation was duly entered into by and between claimant and the office of the Attorney General for the State of Illinois. The stipulation provides as follows:

“L Claimant is a Delaware Corporation and successor by merger to Material Service Corporation (An Illinois Corporation), and is qualified to do business in the State of Illinois; and, by virtue of such merger, plaintiff has succeeded to and is the owner of, and is entitled to exert all claims and rights of said Material Service Corporation, including the claims as set forth in the complaint filed in the above entitled cause.
2. Claimant’s exhibits Nos. 1 through 49 are true and correct copies of the documents they purport to be, and that they should be accepted as and admitted into evidence in this matter without further proof.
3. The claim of claimant is based upon contracts for work and materials furnished by claimant to the Division of Highways of the Department of Public Works and Buildings of the State of Illinois. Work and materials were duly furnished by claimant to the said Division of Highways pursuant to various contracts as indicated by general purchase order numbers as set forth in the complaint. Said work and materials were billed on invoices, of which true copies are attached to the complaint filed in this matter, and are marked exhibits Nos. 1-45, inc.; and that the total amount due for work and materials furnished thereunder is Two Thousand Three Hundred Fifty-Three Dollars and Sixty-Eight Cents ($2,353.68).
4. All of the invoices attached to the complaint as exhibits Nos. 1 through 45, inc., are true and correct in setting out work and materials actually and duly furnished by claimant, and accepted by respondent in accordance with the applicable contracts, requirements and regulations. All of the said invoices remain unpaid on statement of account.
5. Claimant presented its claim to the Department of Public Works and Buildings of the State of Illinois, Division of Highways, but, due to some error or oversight, payment was never made. Claimant resubmitted its daim on statement of account, dated December 31, 1960, a copy of which is attached to the complaint filed in this matter, and marked exhibit No. 46, but claimant was informed that these accounts could not be scheduled and vouchered for payment as the biennium appropriations from which they were payable had lapsed.
6. On account of work and materials duly furnished by claimant and accepted by respondent as alleged in the complaint filed herein, there is now due and owing to claimant from respondent the sum of Two Thousand Three Hundred Fifty-Three Dollars and Sixty-Eight Cents ($2,353.68).
7. Claimant, Material Service Division of General Dynamics Corporation, is the owner of all of the claims set forth in the complaint filed herein; no asisgnment or transfer of said claims or any part thereof has been made, and no other person, firm or corporation has an interest therein. Claimant is justly entitled to the amount claimed from the State of Illinois, after allowing all just credits. No part of the amount due to claimant has been paid, and there is due and owing to claimant from respondent the sum of Two Thousand Three Hundred Fifty-Three Dollars and Sixty-Eight Cents ($2,353.68)."

The only question we now have to pass upon is whether or not an award can he made for the balance due on the contracts, where the appropriation has lapsed before said bills were properly certified for payment.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contracts were entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R,. 302. It appears that all qualifications for an award have been met in the instant case.

Claimant is hereby awarded the sum of $2,353.68.


text:
    (No. 5130
    Ray S. Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    Ray S. Thompson, Claimant, pro se.
    William Gr. Clark, Attorney General, for Respondent.
   Pezman, J.

On November 21, 1963, Ray S. Thompson filed his complaint seeking an award in the sum of $315.82.

The complaint alleges that he is the duly appointed Official Court Reporter of the 17th Judicial Circuit of the State of Illinois with his place of residence in Rockford, Illinois, and principally performing his official duties in the City of Rockford, Illinois; that for the periods of July 14, 1961 through June 22, 1962, and June 4, 1962 through June 28, 1963, he incurred expenses for travel, meals and lodging in the official performance of his . duties; that the appropriation available during the 72nd biennium had lapsed, and payment has not been made.

On January 15, 1964, the Hon. Michael J. Hewlett, Auditor of Public Accounts, filed his letter of report in the above cause, as a result of his investigation of claimant’s allegations. In the letter, Auditor Hewlett acknowledges that claimant was the duly appointed Official Court Reporter for the 17th Judicial Circuit, and that said claimant filed with the office of the Auditor of Public Accounts properly executed travel vouchers containing an itemized account of the travel expenses incurred for the periods of July 14, 1961 through December 7, 1961; January 1, 1962 through December 21, 1962; and January 23, 1963 to and including June 28, 1963, in the performance of his official duties, as certified by the appointing Judge, Albert S. O’Sullivan, and that the above cited vouchers complied with the provisions of the statutes in relation to expense accounts. Auditor Hewlett further stated that the appropriation available during the 72nd biennium for travel lapsed on September 30, 1963.

As a result of the report by the Hon. Michael J. Hewlett, Auditor of Public Accounts, a joint stipulation of facts was entered into by and between Ray S. Thompson, claimant in the case herein, and the State of Illinois, respondent, through its attorney, William G. Clark, Attorney General. The stipulation recites in substance that the complaint properly sets forth the essential facts, and that the amount requested is true and correct, and would have been paid in due course, if the appropriation had not lapsed.

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

Continental Oil Company, A Corporation, vs. State of Illinois, 23 C.C.R. 70

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

An award is hereby made to Ray S. Thompson, claimant, in the amount of $315.82.


text:
    (No. 5145
    Gulf Oil Corporation, A Pennsylvania Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1964.

    Concannon, Dillon, Snook and Morton, Attorneys for Claimant.
    William G. Clark, Attorney General, for Respondent.
   Dove, J.

The claim, as set forth in the complaint filed herein, is based upon the sale of petroleum products furnished by claimant to the Division of Highways of the Department of Public Works and Buildings of the State of Illinois. The complaint was filed in the Court of Claims on February 13,1964.

Thereafter, on April 7, 1964, a stipulation was duly entered into by and between claimant and the office of the Attorney General for the State of Illinois. It provides as follows:

“1. Claimant, Gulf Oil Corporation, is a private Pennsylvania Corporation qualified to do business in the State of Illinois, and engaged in the business of distributing and selling petroleum and its products in the State of Illinois.
2. Claimant authorized various service stations selling its petroleum products and their services to the public to sell its products and furnish services on credit as and when requested by the State of Illinois, Highway Department — Maintenance District No. 5, and State Highway Police — Dish Oper., District No. 13.
3. Attached to the complaint as exhibit A are true copies of schedules of such credit sales of products and services made during the months of April, May and June of 1963, which were mailed to the said Highway Department — Maintenance District No. 5, and State Highway Police — Dist. Oper., District No. 13, on or about the dates shown thereon.
4. The amounts of said schedules show there is due from respondent to claimant for petroleum products sold and services furnished the amounts of $74.41, $72.68, $78.82 and $48.50, a total sum of $274.41.
5. Because said schedules were not forwarded to the Highway Department until after the end of the fiscal year in which incurred, funds to pay said bill were no longer available, and claimant was advised that it must present its claim to this Court for payment.
6. Claimant, Gulf Oil Corporation, by its counsel, again represents that no assignment or transfer of the claim in this cause, or any part thereof, or interest therein has been made by Gulf Oil Corporation, and that Gulf Oil Corporation is justly entitled to the sum of $274.41 from the State of Illinois after allowing all just credits.”

The only question presented here is whether an award can be made for the balance due on the claim where the appropriation had lapsed before the bills were properly certified for payment.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. National Korectaire Company vs. State of Illinois, 22 C.C.R. 302. It appears that all qualifications for an award have been met in the instant case.

Claimant is hereby awarded the sum of $274.41.


text:
    (No. 5105
    Clifford W. Cordes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 26, 1964.

    Giffin, Winning, Lindner and Newkirk, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant seeks recovery of $887.74 in back salary, which is allegedly due and owing to claimant for the period May 20, 1961 to July 1, 1961, and has not been paid him because of lapsed apropriations.

There is no dispute of either law or fact. Claimant was employed by the Department of Revenue from March 23, 1954 until his discharge on April 17, 1961. His salary of $640.00 per month continued until May 19, 1961. His layoff continued until March 25, 1963 when the Supreme Court of Illinois in the case of Cordes vs. Isaacs, 27 Ill. 2d 383, 189 N.E. 2d 236, affirmed an order of the Circuit Court of Sangamon County reinstating claimant, and decreeing the payment of his salary from July 1, 1961 to the date of reinstatement.

Said order of the Circuit Court stated that claimant is entitled to all back salary from May 19, 1961, but noted that “any sums appropriated by the General Assembly of Illinois for payment of personal services by employees of the State of Illinois for the 1959-1961 biennium lapsed on or about July 1, 1961, and said sums are not available for payment for personal services on the date hereof.”

Claimant testified that he earned no compensation from employment of any kind between the dates of May 20, 1961 and June 30, 1961, inclusive.

This Court has long held that, where a Civil Service employee is illegally prevented from performing his duties, and is subsequently reinstated to his position by a court of competent jurisdiction, he is entitled to the salary attached to said office for the period of his illegal removal, but that he must do all in his power to mitigate damages. (Schneider vs. State of Illinois, 22 C.C.R. 453; Pointer vs. State of Illinois, 21 C.C.R. 393; Smith vs. State of Illinois, 20 C.C.R. 202.)

There is no evidence of failure to mitigate damages for the period involved in the instant case. Claimant apparently did obtain some employment for the period subsequent to July 1,1961.

Claimant is hereby awarded the sum of $887.74.


text:
    (No. 5109
    American Oil Company, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 26, 1964.

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

Claimant, American Oil Company, Inc., A Corporation, seeks recovery for sales of products and services rendered to various departments of the State of Illinois by claimant and its dealers during the years 1959 through 1962.

The evidence in this matter consists of a large number of invoices from claimant’s company setting forth the amounts allegedly owed to it by respondent.

According to the stipulation submitted by the parties a balance of $386.51 remained as due and owing to claimant. The Departments of the State of Illinois, which have incurred the debt in this matter, include the Department of Public Works and Buildings, the Department of Public Safety, the Department of Conservation, the Department of Registration and Education, and the Department of Finance.

The stipulation further stated that each of the items of merchandise included in the above sum was purchased by persons having proper authority, was duly delivered, and funds existed for payment at the time of delivery, if an invoice had been submitted prior to the lapse of the particular appropriation.

Where a contract with the State has been (1) properly entered into, (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contracts were entered into, this Court will enter an award for the amount due. National Korectaire Co. vs. State of Illinois, 22 C.C.R. 302, 305; Jack Muse, Inc., vs. State of Illinois, No. 5067. It appears that all qualifications for an award have been met in the instant case.

Claimant is hereby awarded the sum of $386.51.


text:
    (No. 4997
    Leonard Rubin and Western States Mutual Insurance Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1964.

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

Claimants, Leonard Rubin and the Western States Mutual Insurance Company, seek recovery of the sums of $50.00 and $571.35, respectively, for damages allegedly sustained on January 1, 1961 to an automobile, owned and operated by Leonard Rubin, and insured for collision loss by the Western States Mutual Insurance Company.

The evidence shows that on January 1,1961, at 12:30 A.M., Leonard Rubin was operating his 1961 Oldsmobile in a southerly direction on U.S. Route No. 51, a short distance south of the village limits of Shobonier in Fayette County, Illinois. Respondent had relocated Route No. 51 to the east and southeast of the original Route No. 51. Respondent had also constructed a curve and an approach leading from the old Route No. 51 in a southeasterly direction to connect that route with the highway on the relocation of said Route No. 51, which bypassed the Village of Shobonier to the east. Apparently a ditch had been cut through the old route at the southerly end of the curve from the old route to the relocated route.

Leonard Rubin testified that he is a farmer, 40 years old, and lives in Fayette County, Illinois. On January 1, 1961, he owned a new 1961 Oldsmobile automobile in good operating condition. He had obtained an automobile collision insurance policy with the Western States Mutual Insurance Company, which contained a $50.00 deductible clause.

On the date in question, Claimant Rubin was driving his automobile from Shobonier to Sandoval on Route No. 51 in a southerly direction. He was accompanied by Marvin Rubin and William Sachan, who were seated alongside him in the front seat. Claimant stated that he had “a, few beers” that evening, but that he and his companions were sober. He knew that a road was being built, but did not know that the old road had been terminated by building a ditch across it. He was driving about 50 to 55 miles per hour when he first saw the ditch across the road. Apparently there was about fifteen feet of bare ground from the southernmost edge of the pavement to the ditch. There were no signs or any warning signals showing that the road terminated. He applied his brakes, but was going too fast to stop, and went into the ditch, which was about seven or eight feet wide, and four feet deep, his only alternative being to turn and take a chance of rolling the car. No one was injured. He left his car, and returned to the scene of the accident the next morning. The accident caused damage represented by a paid automobile repair bill of $625.31. After the accident, Claimant Rubin noticed that the road on which he was traveling did connect with the new route by a sharp turn to the left from the direction in which he was heading.

Leonard Torbeck testified that he operated a body shop, and was familiar with the automobile owned by claimant. He stated that this automobile was in good condition before the accident. He recovered the car from across the ditch, which he estimated to be about four feet deep. Torbeck testified that the amounts charged for the repair of the car were fair and reasonable.

Ewald Kruenagel, representing the Western States Mutual Insurance Company, stated that he examined the scene of the accident on January 1, 1961, and did not see a sign along the stretch of road in question. On January 8, 1961, he returned and observed a sign, which had apparently been installed subsequent to the accident, with an arrow pointing toward the new highway. He testified that Western States Mutual Insurance Company paid the amount of $625.31 less $50.00 to Torbeck Garage and Leonard Rubin.

Mr. Marvin Rubin testified that he was with Leonard Rubin at the time of the accident, and that Leonard was sober. Claimant was driving 50 or 60 miles per hour on dry pavement when the road suddenly came to a dead end. There were no warning signs to indicate that there was a dead end or a ditch, or that the road was going to turn.

William Sachan testified that, in his opinion, claimant was sober at the time of the accident. He did not know that there was a ditch dug across the road. The night was dark and cloudy, and the pavement was dry. At the time of the accident old Route No. 51 was paved with regular cement, as it had been for years.

Paul Petard, a Civil Engineer with the Division of Highways District Office, testified that he was resident engineer for the State on the Route No. 51 bypass. The connection in question, where old Route No. 51 joined with the new bypass, was completed about October 14,1960. At the time of the accident, the pavement of old Route No. 51 from Shobonier up to the point where the old pavement was torn out was still in the same condition, as it was before the project ever started. In 1961, blacktop was put on the new connection. There was a stop sign up at the entrance of the connection with old Route No. 51 and the new one, about 270 feet from where old Route No. 51 was terminated. Mr. Petard had left the project on December 9, 1960. The old pavement was to be removed, and some had already been removed when he left the job. Petard further stated that there could have been an open ditch at the north end of the removed pavement.

There was no evidence that claimant failed to exercise due care, or that he was intoxicated, as respondent contends. According to witnesses, he was sober, and was proceeding at a speed consistent with driving conditions.

In the opinion of this Court, respondent was in fact negligent, and its negligence was the proximate cause of the accident. Claimant could not reasonably apprehend that the old Route No. 51 would end abruptly with a ditch across the road. There were no signs warning of the connection with the new route, or the termination of old Route No. 51 at that point. The roads were not differentiated by having blacktop put on the route, which connected with the new road, but the surface of concrete remained the same up to the point where the road ended, about 15 feet before the ditch. This condition had apparently existed for several weeks, since some of the old pavement had been removed by the first week of December. There was no barricade or signal warning of either the end of the pavement, or of the ditch cut across the road.

The case of Kerr vs. State of Illinois, 23 C.C.R. 211, also involved a change of location of an old highway where the State had failed to maintain signs designating the connection with the old route. In holding respondent liable, the Court stated at page 217:

“. . .where the State is in the process of repairing, removing, or relocating a highway, it is duty-bound to use reasonable care in warning the traveling public of a hazard, which it has voluntarily created.” (Citing Dale Riggins vs. State of Illinois, 21 C.C.R. 434, 438.)

Claimant, Leonard Rubin, is hereby awarded $50.00, and the Western States Mutual Insurance Company is awarded the sum of $571.35.