text:
    (No. 5032
    Marie Welch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1964.

    G. William Horsley and Robert F. Vespa, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Marie Welch, seeks recovery of $25,000.00 for personal injuries allegedly suffered on August 19, 1961 as the result of a fall while claimant was attending the automobile races at the Illinois State Fair, Illinois State Fair Grounds, Springfield.

Claimant testified as follows:

On August 19, 1961, she attended the Illinois State Fair, and purchased tickets to attend the automobile races to be held that day. She could not get tickets to the Grandstand where she had previously sat for such races, but bought three tickets for the Bleachers. The Bleachers were dry when she arrived about 2:00 P.M. with her husband and grandson. She entered by going up a ramp constructed of wooden boards. Rain fell after she was seated, and about 4:00 P.M. the races were called off. Claimant proceeded to leave the Bleachers by walking-down the north side of the wooden ramp with her right hand on a wooden railing. The railing did not extend to the bottom of the ramp, but stopped about four boards short (approximately two and one-half feet). Her husband was walking on the south side of the ramp, which was about six feet wide. Claimant then apparently caught her toe on a splinter or crack, which she had not seen on the bottom board of the ramp. Her shoe came off, tearing the sole, and she was thrown forward on her face, allegedly sustaining- the injuries of which she now complains. Claimant was wearing “wedgies”, which have a solid heel and no back. She was not bumped from behind.

She was assisted to the First Aid Station, and the doctor in attendance said she had a dislocation of her shoulder. She then walked about a mile to the main gate, and went home. On August 21st she was x-rayed, and her arm put in a sling. Her doctor told her she had a “knob” broken off her shoulder. She was then hospitalized for one day.

Kenneth Welch, claimant’s husband, testified that he and his wife walked up the ramp to the Bleachers using the handrail on the right-hand side. He came down the same side. The boards were damp, but not slick. About thirty minutes after the accident, he came back and looked at the ramp, and noticed the bottom board had a splinter sticking up about a half-inch and extending about two feet. In Welch’s opinion, the splinter looked old. Welch formerly worked in a sawmill, and he stated that he could tell it had probably weathered for about six to eight months.

Pictures of the ramp revealing the splinter were received in evidence. Mr. Welch testified the pictures accurately represented the condition of the ramp as it existed on the day of the accident.

The Departmental Eeport from the State Fair Office, dated May 16, 1962, written by Louis London, Assistant General Manager of the Illinois State Fair, stated that the ramp in question “was in perfect shape prior to the Fair, and still is in A-l condition at the present time. ’ ’

Mr. London testified that the ramp is intended to be permanent, and had been installed for about five or six years, but has been replaced a number of times. He stated that, before the State Fair opens, carpenters and maintenance men check the Bleachers and the ramp to see if there are obstructions. Mr. London indicated that the ramp is ten feet long, leads to an aisle about three feet above the ground, and the photographs submitted by claimant accurately portray the ramp. London testified that a carpenter foreman had been assigned to check the ramps in the entire section, but he could not say that the inspection was actually made. London could not identify the carpenter foreman assigned to check the section, but could apparently have found out by checking his work sheet.

London said that some new boards were replaced in the Bleachers, but records would not show exactly where the work was done. He did not know of the accident until approximately eight months after its occurrence.

Claimant argues that, since she was an invitee, respondent had the duty of exercising reasonable care and caution to keep the premises safe for her use. Claimant further argues that, if respondent had wanted to dispute claimant’s charge of negligence, it would have called as a witness the carpenter foreman, who allegedly inspected the ramp prior to the opening of the Fair, and the ticket-taker or attendant, who, according to Mr. London, were on duty at the time in question.

Respondent counters that claimant did not prove respondent’s negligence, claimant’s freedom from contributory negligence, or the proximate cause of the fall.

In the opinion of this Court, respondent was negligent in the maintenance of the ramp. Photographs revealed that there was a large splinter sticking up from the bottom board. It would seem that the defect should have been discovered upon proper inspection. Respondent did not attempt to rebut the presumption, which was raised by the testimony of claimant’s husband, that the splinter had existed for some time, and that the State had constructive notice of the condition of the board.

The unexplained failure of a party to call a witness in his employ is a circumstance from which the inference may be drawn that the testimony would be unfavorable to the employer, according to 53 Am. Jur. Tr., Sec. 475. This principle is applicable in Illinois, as set forth in the case of In re Sandusky’s Estate, 321 Ill. App. 1, 52 N.E. 2d 285, where the court declared:

“When neither party calls an available witness, whatever presumption will be indulged in from the failure to call such witness will be against the party to whose interest such witness would most likely incline, and failure to produce such witness is, in such case, a proper subject of comment. Zimmerman vs. Zimmerman, supra.” (P. 291 N.E. 2d.)

There was no evidence that the carpenter foreman, who had allegedly inspected the ramp, was not in the employ of respondent at the time of the hearing. It is difficult to understand respondent’s failure to attempt to rebut the inference of notice by calling the carpenter foreman as a witness, or to explain why he was not called.

In the case of Kenney, Admr., vs. State of Illinois, 22 C.C.R. 247, where a tree limb fell from a diseased tree, killing claimant’s intestate on the State Fair Grounds, the Court held that it was respondent’s duty to make a proper inspection in order to safeguard the patrons at the State Fair. The Court also declared:

“It was the duty of respondent to keep the State Fair Grounds and the buildings thereon in a condition reasonably safe for the use of those attending the Fair, and it was obliged to use ordinary or reasonable care to accomplish this. Claimant’s intestate was entitled to rely on or assume the proper performance of this duty. A violation of such a duty constitutes negligence.”

There is no evidence to justify a conclusion that claimant was contributorily negligent. She apparently held onto the railing provided by respondent for as long as possible. However, for some unexplained reason, the railing ended about two and one-half feet before the bottom of the ramp was reached. It was in this unprotected area that the accident occurred. It appears that respondent should have, as a reasonable precaution to prevent falls such as the one suffered by claimant, provided a handrail in a place where there was still an incline. The crack was not readily apparent to those descending the ramp. As the Court stated in Blue vs. St. Glair Country Club, 7 Ill. 2d 359, “where a person invites another upon his premises, the law imposes a duty upon that person to exercise reasonable care for his visitor’s safety, and to warn the visitor of any defects, which are not readily apparent . . . this applies not only to known defects, but also to those conditions, which could have been known had the landowner used reasonable care. ’ ’

Respondent suggests that the nature of claimant’s shoes, and prior activities of walking a mile and sitting-in the rain show that she was not in the exercise of due care and caution for her own safety. Claimant testified she was accustomed to wearing the shoes, and her activities prior to the accident have no bearing on the issue of whether she was exercising care at the time of the accident. There is no evidence to show that Mrs. Welch should have been aware of the defect, since she had gone up the opposite side of the ramp, and the splinter did not extend that far.

The remaining question is one of damages. Claimant testified that she was the owner of a thirty-five room hotel, and did the maid work at the hotel. She was not able to resume her regular duties at the hotel after the accident. She was in bed for three weeks, and wore a sling for three more weeks. She had taken seven physical therapy treatments. She is not able to do all the work, which she did at the hotel, although she can do some things such as dusting. She further testified that she suffers pain almost all the time, and cannot now drive a car, although she did drive before the accident.

Dr. Noah Koenigsberg, claimant’s doctor, who describes himself as an internist, who does not treat fractures, testified that claimant suffered a fracture of the distal end of the right humerus, called the knob on the shoulder. He last examined her on January 14, 1963. At that time claimant complained of pain in the shoulder area, and was unable to hold objects in her right hand because of lack of muscular power. Examination revealed muscle atrophy in the right arm, and less than 50% motion in all directions. She has a discoloration in her right hand, which is due to the injury. Her shoulder muscle is described as atrophied from lack of use, but Dr. Koenigsberg expressed his doubt that the arm would recover entirely even if used. He could not venture an opinion as to permanency.

Dr. Basilius Zaricznyj, apparently an orthopod specialist with the Springfield Clinic, in a report dated December 6, 1961, described the fracture as “well-healed”, and she “should regain normal motion in the right shoulder.” He recommended exercise and physical therapy.

Claimant’s medical bills amounted to $302.75.

Claimant is hereby awarded the sum of $3,500.00.


source: Caselaw Access Project

author: Dove, J.

license: Public Domain

text:
    (No. 5093
    Sophia Stratton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1964.

    Cohen and Cohen, Attorneys for Claimant.
    William G. Clark, Attorney General; Sheldon K. Rachman, Assistant Attorney General, for Respondent.
   Dove, J.

Sophia Stratton filed her claim for injuries on February 1, 1963, and it apears from the files that all notices of intention to institute action in the Court of Claims have been duly and properly filed by said claimant.

The evidence discloses that on the morning of October 15, 1962 claimant was driving her automobile in the vicinity of Kingery Highway and Torrence Avenue, County of Cook, and State of Illinois. It was early in the morning, and the traffic was being re-routed because of a previous accident. The evidence further discloses that claimant was proceeding in a line of traffic at a very slow rate of speed; that a man identified as William C. Baier, an employee of the State Highway Department, was directing traffic, and had in his hand a red light or flare, with which he was motioning in a circular manner directing traffic; that he was approximately two feet from claimant when sparks and phosphorus matter flew from the torch into the window of claimant’s car, causing the jacket of her cloth suit to become ignited and burning her on her right arm and chest.

The evidence further discloses that, as a result of said burns, she has a number of scars at the present time, appearing on her left arm at the elbow, her left hand at the thumb, her right arm at the inner aspect of her elbow, her right wrist, and her left shoulder. These burns and scars were approximately the size of a penny, and will probably remain visible during the remainder of her lifetime. The two employees of the State of Illinois, William C. Baier and Nick Matecek, also testified as to the burns received by claimant, and the manner in which the accident occurred.

There is no evidence that claimant was guilty of any contributory negligence.

We find the State of Illinois guilty of negligence, and hereby make an award to said claimant, Sophia Stratton, in the amount of $500.00.


text:
    (No. 5114
    Vivian Shockey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 20, 1963.

      Cause dismissed without further opinion on July 24, 1964.

    Jack R. Cook, Attorney for Claimant.
    William G. Clark, Attorney General; Edward A. Warm an, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Vivian Shockey, filed her claim, in which she alleged that the State of Illinois, by and through its duly authorized agent, did on the 21st day of September, 1962 appear before John S. Ghent, a Justice of the Peace for District No. 3 Winnebago County, Illinois, and falsely, maliciously, and without any reasonable or probable cause whatever, charged claimant with the crime of “unlawfully, wilfully, and knowingly maintaining, conducting, and operating a trailer court park without having obtained therefor a license.”

Claimant further alleged that defendant without any reasonable or probable cause whatever caused claimant to be arrested and taken in the custody of the ■ police authorities of Winnebago County, necessitating claimant to post a bond on her behalf, and hire an attorney to defend her, even though at such time of arrest she was confined to a hospital with a serious illness. On April 29, 1962, in respbnse to a notice from said Justice Court, claimant appeared for trial at the place and time designated, and that, upon being ready for trial, no witnesses appeared against her, nor was any evidence produced. At said time the case was dismissed by said Justice of the Peace. Claimant alleges the actions of defendant have been malicious, unwarranted, and constitute an abuse of legal process in violation of claimant’s personal and constitutional rights. As a result of this, claimant has incurred great mental and physical suffering, public embarrassment, and injury to her reputation and standing in the community; that, because of her advanced age, her physical condition since the occurrence has deteriorated to a great extent; and, that claimant has had to expend the sum of $75.00 for attorney’s fees, and $20.00 for a professional bondsman, and prays for judgment against the State of Illinois in the sum of $25,000.00.

A motion to strike the complaint was filed by the Attorney General stating that claimant had not attached to her complaint a copy of the criminal complaint referred to in paragraph two of her said complaint; that claimant had not set forth the names of the purported agents of the State of Illinois; that claimant failed to attach to her complaint a bill of particulars; and, finally, that claimant failed to set forth in her complaint whether or not her claim has been presented to any other person, corporation, or tribunal.

Subsequently, claimant filed an amended complaint, and attached thereto a copy of the complaint filed in the Justice of the Peace Court. The amendment to the complaint then alleged that claimant is the owner of and the only person interested in this claim, and that no assignment or transfer of this claim, or any part thereof, has been made.

On August 19, 1963, a Departmental Report was filed, and it appears therefrom that, in April, 1962, a complaint was received by the Illinois Department of Public Health at its Northeastern Regional Office from the Rockford Mobile Home Operators’ Association to the effect that a number of trailer parks were being operated in Winnebago County without a license in violation of ‘ An Act Relating to the Licensing and Regulation of Trailer Coach Parks.” On May 1, 1962, Thomas E. Philbin, Regional Engineer, directed Edwin D. Godbold, Assistant Engineer, to visit Winnebago County and investigate the alleged violations. Mr. Godbold inspected the premises owned by Vivian Shockey, which were located at 3017 Prairie Road, Rockford, Illinois, and found that there were six trailers located upon these premises, and the Shockey Trailer Park was not licensed by the ¿State Department of Public Health, as required by law. On August 9, 1962, Engineer Philbin again visited the Shockey Trailer Park, and found the same six trailers on the premises, as was reported by Mr. Godbold. Claimant, Vivian Shockey, was not at home, and he was advised by Mrs. Shockey’s daughter that claimant was hospitalized in Belvidere, Illinois. On September 5, 1962, Engineer Philbin revisited the trailer park, and found that two trailers had been removed, but four remained. On September 21, 1962, Engineer Philbin again visited the Shoekey premises, and found that the four trailers, which were there during his last visit, had not been removed. He then called at the office of the Winnebago County State’s Attorney, at which time an information was prepared charging Vivian Shoekey with operating a trailer park in violation of the Illinois Statutes. Engineer Phil-bin signed the complaint in the presence of the Justice of the Peace, John S. G-hent, but Engineer Philbin was not advised, nor was the Regional Office ever advised, that a hearing was to be conducted in the court of Justice of the Peace Ghent on April 29, 1963, or on any other date.

Secs. 162 and 166 of Chapter 111½, Ill. Rev. Stats., provide as follows:

“ ‘Trailer Court Park’ or ‘Park’ means an area of land upon which two or more occupied trailer coaches are harbored, either free of charge or for revenue purposes, and shall include any building, structure, tent, or enclosure used or intended for use as a part of the equipment of such trailer coach park.
“No person, firm, or corporation shall establish, maintain, conduct, or operate a trailer coach park after April 30, 1954, without first obtaining a license therefor from the Department. Such license shall be issued for one year, and expire at midnight on April 30 of the year next following the issuance thereof, and the license shall be renewed from year to year upon payment of the annual license fee herein provided.”

It is amply clear from the Departmental Report that claimant,'! Vivian Shoekey, was in violation of the statutes of the State of Illinois. We are of the opinion that claimant has not stated a cause of action; that she has sustained no damages; and, that the motion of the Attorney General to strike should be allowed.

It is hereby ordered that the claim of Vivian Shoekey be, and the same is hereby stricken.


text:
    (No. 5131
    Gilbert-Hodgman, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1964.

    Horan and Horan, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Dove, J.

This claim is based upon a contract for electrical work, together with materials, which were furnished by claimant to the Division of Architecture and Engineering of the Department of Public Works and Buildings of the State of Illinois. Said contract is evidenced by claimant’s exhibit attached to the original claim.

Subsequently, 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 in part as follows: That claimant under contract No. 71531 furnished materials and performed work for respondent in air conditioning the offices of the Department of Registration at the State of Illinois Building, 160 North LaSalle Street, Chicago, Illinois; that claimant presented its bill to respondent, and that the same was not paid, because the biennium appropriation from which it was payable had lapsed; that claimant is the owner of said claim; that no assignment or transfer of the claim in this cause, or any part thereof or interest therein, has been made by claimant herein; and, that there is due and owing from respondent, the State of Illinois, to claimant herein, after allowing all just credits, the sum of $3,661.05.

The only question presented here is whether or not an award can be made for the balance due on the contract above referred to where the appropriation has lapsed.

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 $3,661.05.


text:
    (No. 5147
    The Pittsburg and Midway Coal Mining Co., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1964.

    Schiff, Hardin, Waite, Dorschel and Britton, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Dove, J.

The claim, as set forth in the complaint filed herein, is based upon a purchase order for coal to be shipped and delivered to the Dixon State School, covering 215.50 tons of coal in the amount of $1,407.22, which purchase order is evidenced by invoices attached to the original complaint.

Thereafter a stipulation was duly entered into by and between claimant and the office of the Attorney General for the State of Illinois. This stipulation provides as follows:

“1. On or about June 22, 1963, as a result of competitive bidding, respondent, through its Department of Finance, Purchases and Supplies Section, by and through James A. Ronan, Director of Finance, issued to claimant a written purchase order bearing the aforesaid date and numbered 526983 (hereinafter referred to as the ‘purchase order’), a copy of which is attached to the complaint herein as exhibit A. Said purchase order was amended and partially cancelled by a written cancellation of purchase order, dated April 17, 1963, a copy of which is attached to the complaint herein as exhibit B. Except as hereinbefore stated, said purchase order has not been cancelled or amended by the parties. The contract evidenced by the purchase order is listed on page three of the Tabulation of Annual Coal Contracts for 1962-1963, dated July 23, 1962, by the Department of Finance, State of Illinois. A copy of pages one and three of said Tabulation are attached to the complaint herein as exhibit C.
2. All the coal required under the purchase order, as amended, to be shipped and delivered to the Dixon State School (hereinafter referred to as ‘the School’) has been delivered to and received by the School, freight prepaid. Pursuant to such delivery, receipt, and acceptance of coal, claimant has invoiced respondent, through the School, the amounts legally due and owing from respondent to claimant by virtue of such delivery, receipt, and acceptance. All such invoices, being the legal obligation of the State of Illinois, have been duly paid by respondent with the exception of an invoice (hereinafter referred to as the ‘invoice’) covering 215.50 tons of coal in the amount of $1,407.22. A copy of said invoice is attached to the complaint herein as exhibit D. Said invoice is supported by prepaid freight bills, dated May 20, 1963, June 3, 1963, June 4, 1963 and June 24, 1963, copies of which are attached to the complaint herein as exhibits E, F, G and H, respectively.
3. Said invoice was returned unpaid to claimant by respondent, through the School, under cover of letter, dated November 22, 1963, a copy of which is attached to the complaint herein as exhibit I. Such letter stated that said invoice was not received until September 23, 1963, that the last day for vouchering invoices from the 72nd biennium was September 20, 1963, and that, although the coal covered by the invoice was received, and claimant was entitled to payment, it would be necessary to file a claim against respondent through the Court of Claims.
4. Subsequent to the institution of this action in the Court of Claims, the Department of Finance of the State of Illinois has advised the Attorney General that it has no defense to the claim.
5. Claimant has performed all conditions and terms required on its part to be performed, and is the only person to have any interest in the claim above stated. No assignment or transfer of the claim, or any part thereof, has been made by claimant. Neither this claim nor any other claim relating to the occurrence, which gave rise to this claim, has been previously presented to any person, corporation or tribunal other than the State of Illinois and its representatives.
6. Claimant, The Pittsburg and Midway Coal Mining Co., A Corporation, is, therefore, entitled to an award in the sum of $1,407.22.”

The only question we now have to pass upon is whether or not an award can be made for the balance due upon the contract where the appropriation has lapsed.

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 $1,407.22.


author: Fearer, J.

text:
    (No. 4774
    John C. Byrnes, Thomas J. Fitzgerald, Roman Habrelewicz, Joseph Onesto, George Pestka, John Siegel, Harold Thompson, Tony Johnson, Charles Maeys, and Rosemary Racine, Administrator of the Estate of Walter Racine, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

      Petitions of Claimants and Respondent for Rehearing withdrawn August 20, 1964.

    Michael F. Ryan, and Sears, Streit and Tyler, Attorneys for Claimants.
    William Gf. Clark, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Fearer, J.

John C. Byrnes, Thomas J. Fitzgerald, Roman Habrelewicz, Joseph Onesto, George Pestka, John Siegel, Harold Thompson, Tony Johnson, Charles Maeys, and Rosemary Racine, Administrator of the Estate of Walter Racine, deceased, were all Civil Service employees of the Department of Agriculture of the State of Illinois on and before June 30, 1953. They are now suing for back salaries for the period of their removal, which was between June 30, 1953 and July 1, 1955.

Claimants, during their period of service, were Foods and Dairies Inspectors in the Department of Agriculture of the State of Illinois, and were removed from their positions on June 30, 1953. Subsequent to their removal on September 21, 1953, John C. Byrnes, Thomas J. Fitzgerald, Roman Habrelewicz, Joseph Onesto, George Pestka, Walter Racine, John Siegel and Harold Thompson filed a complaint for mandamus in the Circuit Court of Cook County, Illinois against Stillman J. Stanard, Director of the Department of Agriculture of the State of Hlinois, Maude Myers, Saul A. Epton and Warren D. Moyer, members of the Illinois State Civil Service Commission, Orville E. Hodge, Auditor of Public Accounts of the State of Illinois, and Elmer J. Hoffman, Treasurer of the State of Illinois, in which complaint claimants requested reinstatement to their Civil Service positions with the Department of Agriculture of the State of Illinois, from which they asserted they had been illegally removed on June 30, 1953, together with payment of back salary from the date of their removal. Thereafter, on November 4, 1953, claimants, Tony Johnson and Charles Maeys, were given leave to file their intervening complaint in the mandamus proceeding seeking the same relief as the original parties.

On March 15, 1954, the trial court entered judgment for the plaintiffs, and ordered the defendants to reinstate and recompense the plaintiffs the salary appropriated for their respective positions during the period of their removal.

Thereafter, the defendants appealed, and, on June 13, 1955, the Appellate Court of Illinois for the First District, affirmed the trial court’s decision, and denied the defendant’s petition for rehearing in the case of People ex rel John C. Byrnes, Et Al, vs. Stillman J. Stanard, Et Al, 6 Ill. App. (2d) 441.

Thereafter, defendants petitioned the Supreme Court of Illinois for leave to appeal, which was allowed, and, on September 25, 1956, the Supreme Court affirmed the findings in favor of the plaintiffs, and denied a petition for rehearing as reported in People ex rel John C. Byrnes, Et Al, vs. Stillman J. Stanard, El Al, 9 Ill. (2d) 372.

Consequently all the claimants were reinstated, and are before this Court personally, or by legal representatives, seeking back salaries for the period from June 30, 1953 to July 1,1955.

Summarily disposing of respondent’s contention that claimants are barred from receiving an award, the law is well settled that illegally removed Civil Service employees may recover back salaries during the period of their separation after subsequent reinstatement subject to mitigation based on salaries from supplemental employment, Schneider vs. State of Illinois, 22 C.C.R. 453, as well as conscientious efforts to obtain employment and credibility of their testimony evidencing their efforts.

In order to arrive at the award to which claimants are entitled, we must consider each case individually.

John C. Byrnes may seek back pay for 24 months at $300.00 per month, or $7,200.00, less credit to the State for supplemental earnings during said period of time in the amount of $4,588.71, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $2,611.29.

The record shows that claimant was approximately 26 years of age, in apparent good health, and did not ber come gainfully employed until December 22,1953. Therefore, his claim will be mitigated further for the period of time he was unemployed, i.e., from July 1, 1953 to December 22, 1953, in the amount of $576.00, which figure represents a fair standard set by this Court for credit to the State during the time when we feel that claimant should have been gainfully employed, leaving a net amount of $2,035.29.

Thomas J. Fitzgerald may seek back pay for 24 months at $300.00 per month, or $7,200.00, less credit to the State for supplemental earnings during said period of time in the amount of $5,889.98, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $1,310.02.

Homan Habrelewicz earned more during the period of separation than his salary as a Civil Service employee. Therefore, he is not entitled to an award.

Tony Johnson may seek back pay for 24 months at $310.00 per month, or $7,440.00.

The record shows that claimant only sought employment in a very small community, and that other part-time employment was available. Claimant was approximately 64 years of age, in apparent good health at the time of separation. Therefore, his claim will be mitigated further for the period of time he was unemployed, i.e., from July 1,1953 to August 1,1954, in the amount of $1,344.00, which figure represents a fair standard set by this Court for credit to the State during the time when we feel that claimant should have been gainfully employed. However, his claim will not be further mitigated from July 1, 1954 to July 1,1955, since claimant will have by that time achieved the age of retirement, leaving a net amount of $6,096.00.

Joseph Onesto may seek back pay for 24 months at $300.00 per month, or $7,200.00, less credit to the State for supplemental earnings during said period of time in the amount of $5,361.16, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $1,838.84.

The record shows that claimant was approximately 39 years of age, and in apparent good health at the time of the separation. He did not become gainfully employed until October 15, 1953. Therefore, his claim will be mitigated further for the period of time he was unemployed, i.e., from July 1, 1953 to October 15, 1953, in the amount of $308.00, which figure represents a fair standard set by this Court for credit to the State during the time when we feel that claimant should have been gainfully employed, leaving a net amount of $1,530.84.

George Pestka may seek back pay for 24 months at $340.00 per month, or $8,160.00, less credit to the State for supplemental earnings during said period of time in the amount of $1,410.03, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $6,749.97.

John Siegel, now deceased, may seek back pay for 24 months at $300.00 per month, or $7,200.00, less credit to the State for supplemental earnings during said period of time in the amount of $4,588.71, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $2,611.29.

The record shows that claimant was approximately 56 years of age, in apparent good health at the time of separation, and did not become gainfully employed until J anuary 16, 1954. Therefore, his claim will be mitigated further for the period of time he was unemployed, i.e., from July 1, 1953 to January 16, 1954, in the amount of $672.00, which figure represents a fair standard set by this Court for credit to the State during the time when we feel that claimant should have been gainfully employed, leaving a net amount of $1,939.29.

Harold Thompson may seek back pay for 24 months at $370.00 per month, or $8,880.00, less credit to the State for supplemental earnings during said period of time in the amount of $294.23, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $8,585.77.

The record shows that claimant was approximately 55 years of age at the time of his separation, and in apparent good health. Based upon the Commissioner’s Report, it appears that claimant was highly uncooperative, and his credibility as a witness was questionable. Therefore, his claim will be mitigated further in the amount of $200.00 per month from July 1,1953 to July 1, 1955, or $4,800.00, leaving a net amount of $3,785.77.

Charles Maeys may seek back pay for 24 months at $330.00 per month, or $7,920.00, less credit to the State for supplemental earnings during said period of time in the amount of $662.66, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $7,257.34.

The record shows that claimant was approximately 64 years of age, in apparent good health, admittedly had npt retired after his discharge, and could have obtained at least additional part-time employment. Therefore, this claim will be-mitigated further for the period of time he was unemployed in the amount of $1,344.00, which .figure represents a fair standard set by this Court for credit to the State during the time when we feel that claimant should have been gainfully employed, leaving a net amount of $5,913.34.

Rosemary Racine, Administrator of the Estate of Walter Racine, may seek back pay for 24 months at $345.00 per month, or $8,280.00, less credit to the State for supplemental earnings during said period of time in the amount of $4,828.03, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $3,451.97.

The record shows that claimant, Walter Racine, did not become gainfully employed until November 9, 1953. Therefore, his claim will be mitigated further for the period of time he was unemployed, i.e., from July 1,1953 to November 9, 1953, in the amount of $292.00, which figure represents a fair standard set by this Court for credit to the State during the time when we feel that claimant should have been gainfully employed, leaving a net amount of $3,159.97.

It is, therefore, the order of this Court that the following awards be granted: John C. Byrnes, $2,035.29; Thomas J. Fitzgerald, $1,310.02; Roman Habrelewicz, no award; Tony Johnson, $6,096.00; Joseph Onesto, $1,530.84; George Pestka, $6,749.97; John Siegel, $1,939.29; Harold Thompson, $3,785.77; Charles Maeys, $5,913.34; and, Rosemary Racine, Administrator of the Estate of Walter Racine, $3,159.97.


author: Pezman, J.

text:
    (No. 5029
    John Palmer, Claimant, vs. Northern Illinois University, A Corporation, Respondent.

      Opinion filed September 25, 1964.

    Wallace, Shelton and Kleinman, Attorneys for Claimant.
    Dunn, Dunn and Brady, Attorneys for Respondent.
   Pezman, J.

Claimant, John Palmer, an orchestra leader, was engaged by the Northern Illinois University Alumni Association to present a program in the field house of Northern Illinois University, De Kalb, Illinois, on April 27, 1961. He arrived at the field house with his orchestra at approximately 3:30 P.M. on April 27, 1961, and rehearsed from 4:00 P.M. until approximately 6:00 P.M. Sometime between 6:00 P.M. and 7:00 P.M. claimant claims to have injured his foot and ankle in stepping or falling from the stage to a dirt track. He did not notice any depression in the dirt track before alighting from the stage, but did notice a depression after he stepped off the stage, and felt pain. The stage was set up in accordance with the specifications that were provided by claimant. Claimant alleges he was not able to see any depression in the dirt track when he stepped off the stage, because of the fact that the lighting did not reach that area. Claimant continued his performance that evening, and then returned to Chicago.

Claimant was subsequently treated for a fracture of the fifth metatarsal, and an avulsion fracture of the lower end of the right fibula. The medical practitioner involved stated that there would not be any permanent residual disability as a result of the accident. Claimant now contends that he lost several engagements as a result of this accident, due to his inability to contact potential customers.

Respondent’s witnesses indicate no knowledge of the alleged depression in the track before or after the accident. Evidence was introduced indicating that the custodial supervisor in charge of the field house had inspected the premises on April 27, 1961. This custodial supervisor did not notice any defect in the running track in the area described, and did not have notice or knowledge of any defect in the area prior to April 27, 1961.

Claimant’s claim is denied. It is a well established rule that the State is not an insurer against accidents, and the mere fact that an accident happened does not, in and of itself, impose liability on the State or a subdivision of the State. Evidence indicates that tire superintendent of buildings and maintenance and the custodial supervisor in charge of the field house were both in the field house in the performance of their duties on the day in question, and both had inspected the premises, and did not observe the alleged defect, which claimant asserts caused his injury. In order for claimant to recover, he must show that the State or a subdivision of the State had either actual or constructive notice of the defect of which the complaint alleges. The mere fact that a defective condition existed, if, in fact, it did exist, is not, in and of itself, sufficient to constitute an act of negligence on the part of respondent.

Claimant has not only failed to show any negligence on the part of respondent, but has also failed to comply with Secs. 22-1 and 22-2 of the Court of Claims Act. These sections provide as follows:

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

The notice provided for in the above quoted statute is mandatory, and, as stated in Sec. 22-2, failure to give such notice shall be sufficient cause for the action to be dismissed with prejudice. We find the cause for respondent.


text:
    (No. 5034
    Walter L. Bayer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Daniel Mc Mullen, Attorney for Claimant.
    William G. Clark, Attorney General; Edward A. Warman and Edward G. Finnegan, Assistant Attorneys General, for Respondent.
   Pezman, J.

Claimant seeks reimbursement for salary for a period of illegal suspension and illegal discharge from his employment as a classified employee under the Personnel Code of the State of Illinois. Claimant was employed by the Illinois Youth Commission, and is presently so employed.

A petition was filed on May 1, 1962, to which respondent did not file a specific pleading. The parties in the cause stipulated and agreed as follows:

“Claimant, Walter L. Bayer, was, on and prior to February 20, 1961, actively engaged in the performance of his duties as an employee of the Illinois Youth Commission under the rules of the Department of Personnel.
“Claimant was duly certified and appointed to his position after taking and passing the requisite Civil Service examination therefor.
“Claimant was promoted to Senior Guard Captain on September 1, 1959, which position was at that time, and at all times, designated and classified by the Civil Service Commission and by the rules of the Department of Personnel, and the salary range therefor was from $500.00 to $620.00 per month.
“The position was in the classified service of the Illinois Youth Commission of the State of Illinois, and was not exempt under the State Civil Service Act or the law governing the Department of Personnel.
“Claimant performed the duties of his position from the date of his appointment until the date of his discharge.
“On February 20, 1961, claimant was notified of a disciplinary suspension of thirty days, effective February 20, 1961, pending discharge at the request of the Chairman of the Illinois Youth Commission for the reason of ‘violation of Illinois Youth Commission administrative regulations.’
“On March 20, 1961, claimant was notified of his discharge, effective February 20, 1961, at the request of the Chairman of the Illinois Youth Commission with the last day of pay as of February 21, 1961.
“Within the time required by law, claimant requested a hearing, and it was scheduled by the Civil Service Commission on notice to claimant for April 10, 1961, at which time the hearing was held.
“Claimant appeared before said Commission pro se, and, upon the conclusion of the hearing on January 12, 1962, the hearings referee decided ‘It is, therefore, the decision of the hearings referee that petitioner, Walter L. Bayer, be and he is hereby retained in his position as Senior Guard Captain at the Illinois State Industrial School for Boys, Sheridan, Illinois, effective March 23, 1961.,
“Thereafter, on January 18, 1962, the Civil Service Commission entered its findings and decision as follows:
‘The undersigned Civil Service Commissioners of the State of Illinois, having read and examined the proofs, oral, documentary and written, taken in the above entitled cause, together with the record, evidence, findings and decision of the above-named hearings referee, concur in, and adopt the same as those of the Civfl Service Commission, State of Illinois, and said findings and decisions so concurred in and adopted by the said undersigned Commissioners are hereby certified to the Director of the Department of Personnel, State of Illinois, for enforcement/
“At the request of the Illinois Youth Commission claimant returned to his employment as a Senior Guard Captain at the Illinois Industrial School for Boys, Sheridan, Illinois, on February 13, 1962, and has since continued to work in said employment.
“The Illinois Youth Commission has paid claimant for his salary at the rate of $590.00 per month for the period of July 1, 1961 to February 12, 1962, both dates inclusive, less claimant’s earnings of $2,748.10 from other employment during that period.
“The net amount paid to claimant by respondent was $1,696.90.
“From the findings and decision of the Civil Service Commission it appears that claimant was removed from his Civil Service position, and was prevented from performing the duties of said position, and from receiving the salary appropriated therefor and attached thereto from February 20, 1961 to June 30, 1961, both dates inclusive.
“The findings and decision of the Civil Service Commission of the State of Illinois are in full force and effect, and have never been reversed, modified, annulled or set aside, and no appeal has been taken, or is pending.
“The salary appropriated was the sum of $590.00 per month.
“For the period of February 20, 1961 to June 30, 1961, inclusive, the Illinois State Legislature passed appropriation bills for the position of Senior Guard Captain at the Illinois Industrial School for Boys, Sheridan, Illinois.
“Claimant has not been paid the back salary for the period of February 20, 1961 to June 30, 1961, inclusive.”

From the record it appears that claimant made a conscientious effort to be employed during the period from February 20, 1961 to June 30, 1961. The evidence showed that he made applications at various places, but was unable to gain employment until July 2, 1961. The record and the stipulated statement of facts also show that, upon his return to employment by the Illinois Youth Commission, claimant was paid in full for services after June 30, 1961 when the biennium ended. The appropriation for services rendered prior to June 30, 1961 lapsed. Had there been no lapse of appropriation, the Illinois Youth Commission would have paid claimant, and this case would not have been brought before the Court of Claims.

The Court of Claims has expressed itself thoroughly on this point in the case of Schneider vs. State of Illinois, 22 C.C.R. 453, as well as in the cases of Secaur vs. State of Illinois, 21 C.C.R. 364, and Poynter vs. State of Illinois, 21 C.C.R. 393.

Claimant is, therefore, hereby awarded the sum of $2,544.00 for his salary from February 20, 1961 to June 30, 1961, inclusive.


author: Perlin, C. J.

text:
    (No. 5061
    Clifton W. Burgener, Administrator of the Estate of Myra J. Burgener, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    James J. Massa, Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Clifton W. Burgener, Administrator of the Estate of Myra J. Burgener, deceased, seeks recovery of $25,000.00 damages arising out of the death of his wife on Monday, January 29, 1962, on Illinois State Route No. 157.

Claimant alleges that the State of Illinois, through its Division of Highways of the Department of Public Works and Buildings, was negligent in that it permitted Highway-No. 157 to be and remain in an icy and dangerous condition, and failed to warn the traveling public of the dangerous condition. The accident occurred several miles north of Bunkham Road on Highway No. 157 at approximately 8:30 A.M.

Claimant, who was not a witness to the accident, testified that his wife left their home about 8:00 A.M. on the day of the accident to take her granddaughter to school, and then proceeded to her own job as a school teacher. She did not ordinarily use Route No. 157 to travel to her place of employment. Prior to her demise, Mrs. Burgener had never suffered an accident, and was cited by the Secretary of State for careful driving about a year before the accident.

Edwin Barmann testified that he lived about 150 feet from the scene of the accident, but was not a witness to it. He arrived at the scene of the accident, and saw the car upside down, and a woman lying alongside. The highway was heavily iced, the ice extending from the curve south of his home to north of it, and was solid across the road. It had been heavily iced three or four days before the time of the accident in question. Mr. Barmann called the State Police Friday evening to report a minor accident on that particular stretch. He called them again Sunday evening, the night before the accident in the instant case, about 8:00 to report several accidents, which occurred that day. He told the State Trooper there were three accidents at the point in question between 6:00 and 8:00 P.M., and that they ought to put a sign out there telling people to slow down. The State Trooper said it would be taken care of. From 8:00 to 12:00 P.M. two more accidents occurred. The witness did not see any highway trucks or police vehicles investigating the accidents after he called them on Sunday.

Mr. Barmann further testified that he has lived in his present home for about twenty years, and the icy condition, which was caused by water running from the bluffs onto the road and freezing, had appeared with regularity. The condition was especially heavy the year of the accident.

Mr. Barmann had driven the road five times the day before the accident, and stated that no cinders or salt had been spread that day.

Norman Becker testified that he was traveling behind the deceased when the accident occurred. He testified that she was going about 35 to 40 miles per hour going into the curve on Route No. 157. The surface of the highway was iced starting just past the curve. He saw the ice about 12 or 15 feet from it, and could not see it earlier because of the curvature of the road. He observed no warning signs. He saw the Burgener car driving into the curve, and stated that the car was completely under control when she went around the curve, and was on the proper side of the road until she hit “that spot there, and she started fish-tailing back and forth”. Until the curve, the highway was dry, and there was no snow, water, or ice on it. The ice covered about 400 feet or more on the east side of the highway, the side that Mrs. Burgener was traveling. The accident occurred at the foot of the bluffs, where the Burgener car overturned.

Velma Hartman was also traveling along Route No. 157 on the morning of the accident. She testified that, until one got past the curve, the ice could not be seen. “You are driving along as normal up to where you got up to that jut-off that obstructs your vision, and then, as soon as you got past that, you got ice.” There were no warning signs posted or speed limit signs. She had driven that stretch of road for 13 years, and noticed that water had a tendency to accumulate. On the day of the accident, there were no cinders, salt, or any other such thing on the ice. She also stated that the highway curves around the bottom of the bluff, and one does not see the next two or three hundred feet of highway until rounding the curve.

Robert Drummond, an engineer with the State of Illinois Division of Highways, testified that he was a maintenance field engineer, and the scene of the accident was in his territory on January 29, 1962. He was at the scene of the accident the afternoon after it happened, and there was no ice on the pavement. There were gutters located nearby, which were carrying water, and, to the best of his knowledge, the water was confined to the gutter, and did not extend into the highway.

Billy J. Barnhill, the State Policeman who arrived at the scene of the accident before the ambulance arrived, testified that he found the Burgener car with the wheels in the air, and there was a thin film of ice covering the surface of the road, which was caused by water seepage out of the bluffs.

Mr. Paul Jones was highway maintenance supervisor for the area, which included the scene of the accident. He went to the scene of the accident on the day it occurred. There was a thin sheet of ice on the pavement for several hundred feet. He testified that salt and cinders had been applied the Sunday afternoon before the accident. At that time there was water and no ice, and the section man applied the abrasive to the moisture. Water comes out of the hillside at that point all year around. There were no signs warning northbound traffic between Bunkham Road (where the deceased had entered Route No. 157) and Caseyville, but there were signs in the area warning of the conditions on Route No. 157. He was aware of the water formation, and the ice in the area in question whenever the temperature dropped prior to the Winter of January, 1962.

Alfred Kassing, highway section man with the Division of Highways for the area in question, testified that on the morning of the accident he arrived at the scene of the accident, and was at that time spreading salt and cinders. He had spread salt and cinders the previous day on instructions from Mr. Jones, who told him to hit all the spots on Route No. 157, which might freeze. He spread salt and cinders about twice a day.

Another engineer for the State testified that he came upon the scene of the accident and saw ice, but he saw no cinders at the point of the accident, but rather the cinders he saw appeared to have stopped about 300 feet from the scene of the accident.

While the State is not liable for injuries from the natural accumulation of ice and snow (Levy vs. State of Illinois, 22 C.C.R. 694), it may be held hable for failure to warn the traveling public of the dangerous condition of a highway caused by an unusual accumulation of ice, where it has had notice of such condition. (Bovey, Et Al, vs. State of Illinois, 22 C.C.R. 95.)

There is substantial evidence in the record showing that the State had notice not only of the condition of the area on Highway No. 157, which had long tended to an unusual accumulation of ice and water, but it, in fact, had notice of several accidents the very evening before the one in question occurred. It would seem that the erection of signs or signals is the least action respondent should have exercised. If cinders were spread at that point, they were not spread in such a manner as to be reasonably effective under the circumstances. There were no signs posted upon Route No. 157 within the one-tenth mile between the icy condition and Bunkham Road where Mrs. Burgener turned onto Route No. 157.

Respondent contends that claimant has failed to establish that deceased was in the exercise of due care.

Testimony of the eye-witness to the accident, Norman Becker, refutes respondent’s contention, and, in fact, indicates that the deceased was in the exercise of due care for her safety. The witness himself did not see the ice until he was only 12 or 15 feet from the accumulation, the rest of the highway being dry.

It is the opinion of this Court that claimant be awarded damages in the sum of $10,000.00.


text:
    (No. 5072
    Foster-Western Pharmacy, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Irwin Bloom, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Foster-Western Pharmacy, Inc., filed its original claim on November 16, 1962 seeking payment of the sum of $26,919.90 for pharmaceutical supplies furnished to Illinois Public Aid recipients for a period of several years.

Subsequently, on April 23, 1964, a stipulation of facts was entered into by the attorney for claimant and the Attorney General for the State of Illinois whereby it was agreed as follows:

“Foster-Western Pharmacy, Inc., an Illinois Corporation and claimant herein, is in the business of supplying pharmaceutical and sundry items to the public.
"Foster-Western Pharmacy, Inc., and the Public Aid Commission entered into an agreement wherein the State of Illinois was to reimburse the Foster-Western Pharmacy, Inc., for its sale to recipients of pharmaceuticals supplied by the said Foster-Western Pharmacy, Inc.
“The terms of the foregoing agreement and the acceptance thereof by the State of Illinois are fully set forth in the complaint hereto as exhibits A and B.
"The Foster-Western Pharmacy, Inc., after fully performing its obligations under the said agreement rendered and mailed a bill to the State of Illinois for the sum of $13,459.95.
“The Seventy-Second biennium appropriations out of which the bill was payable had lapsed at the time the bill was mailed, and the funds to pay said bill were no longer available to the Public Aid Commission.
“Foster-Western Pharmacy, Inc., 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 Foster-Western Pharmacy, Inc., and that the Foster-Western Pharmacy, Inc., is justly entitled to the sum of $13,459.95 from the State of Illinois after allowing all just credits.”

An amended petition filed on May 12, 1964 reduced the ad damnum to $13,459.95, the amount of damages agreed upon in the stipulation.

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 a statement was presented, the appropriation lapsed, an award will be made. Continental Oil Company vs. State of Illinois, 23 C.C.R 70; M. J. Holleran, Inc., vs. State of Illinois, 23 C.C.R 17.

Pursuant to the evidence submitted, and the stipulation of facts filed herein, an award is hereby made to claimant, Foster-Western Pharmacy, Inc., in the sum of $13,459.95.


text:
    (No. 5073
    Westridge Pharmacy, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Irwin Bloom, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Westridge Pharmacy, Inc., filed its original claim on November 16, 1962 seeking payment of the sum of $19,617.90 for pharmaceutical supplies furnished to Illinois Public Aid recipients for a period of several years.

Subsequently, on April 24, 1964, a stipulation of facts was entered into by the attorney for claimant and the Attorney General for the State of Illinois whereby it was agreed as follows:

“Westridge Pharmacy, Inc., an Illinois Corporation and claimant herein, is in the business of supplying pharmaceutical and sundry items to the public.
“Westridge Pharmacy, Inc., and the Public Aid Commission entered into an agreement wherein the State of Illinois was to reimburse the Westridge Pharmacy, Inc., for its sale to recipients of pharmaceuticals supplied by the said Westridge Pharmacy, Inc.
“The terms of the foregoing agreement and the acceptance thereof by the State of Illinois are fully set forth in the complaint hereto as exhibits A and B.
“Westridge Pharmacy, Inc., after fully performing its obligations under the said agreement rendered and mailed a bill to the State of Illinois for the sum of $9,808.95.
“The Seventy-Second biennium appropriations out of which the bill was payable had lapsed at the time the bill was mailed, and the funds to pay said bill were no longer available to the Public Aid Commission.
“Westridge Pharmacy, Inc., 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 Westridge Pharmacy, Inc., and that the Westridge Pharmacy, Inc., is justly entitled to the sum of $9,808.95 from the State of Illinois after allowing all just credits.”

An amended petition filed on May 12, 1964 reduced the ad damnum to $9,808.95, the amount of damages agreed upon in the stipulation.

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 a statement was presented, the appropriation lapsed, an award will be made. Continental Oil Company vs. State of Illinois, 23 C.C.R. 70; M. J. Holleran, Inc., vs. State of Illinois, 23 C.C.R. 17.

Pursuant to the evidence submitted, and the stipulation of facts filed herein, an award is hereby made to claimant, Westridge Pharmacy, Inc., in the sum of $9,808.95.


text:
    (No. 5132
    Evans Construction Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    William Franklin Fuiten, Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Pezman, J.

The complaint filed herein alleges that there is now due and owing claimant from respondent the sum of $3,740.00. Said amount represents charges for certain changes, alterations, additions and extra work in connection with a contract entered into with the State of Illinois, Department of Public Works and Buildings, for the construction of a certain building in Springfield, Illinois, known as the New State Museum Building. The contract was entered into on December 28, 1960, and was subsequently amended by authorizations, issued by respondent, and agreed to by claimant.

It is further alleged that the provisions of the contract and subsequent authorizations were completely performed by claimant on or before November 18, 1963; that respondent was submitted a statement for the balance due and owing claimant on or about November 18, 1963; and, that the appropriation lapsed prior to the payment of said claim.

Respondent’s Departmental Report and Supplemental Departmental Report, dated January 8, 1964 and May 15, 1964, respectively, and signed by Francis S. Lorenz, Director of the Department of Public Works and Buildings, acknowledge that the balance due and owing claimant for performing said services is the sum of $3,740.00.

Respondent has stipulated in writing with claimant that the Departmental Report and Supplemental Departmental Report of the Department of Public Works and Buildings shall constitute the record in the case.

From the record submitted in this case, it appears that the amount of $3,740.00 is now due and owing claimant by respondent, and an award in that amount is hereby made.


text:
    (No. 5142
    Indiana Harbor Belt Railroad Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Richard O. Olson, Attorney for Claimant.

      William G. Clark, Attorney General. Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

On or about the 14th day of August, 1962, claimant, Indiana Harbor Belt Railroad Company, a Corporation, entered into an agreement with respondent, acting by and through the Department of Public Works and Buildings, Division of Waterways, whereby claimant granted respondent permission to enter upon its property to make certain channel improvements.

The instant claim in the amount of $843.40 arises from said contract, and represents the amount due and owing claimant for engineering and inspection expenses.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

“Indiana Harbor Belt Railroad Company, a Corporation and claimant herein, is a railroad corporation engaged in the business of common carrier in the State of Illinois.
“Indiana Harbor Belt Railroad Company and the State of Illinois, Department of Public Works and Buildings, Division of Waterways, entered into an agreement on August 14, 1962 permitting the State to enter upon claimant’s property to make certain channel improvements, and the State specifically agreed to reimburse claimant for its engineering and inspection expense.
“The terms of the foregoing agreement and the acceptance thereof by the State are fully set forth herein as exhibit A in the complaint.
“Claimant, after fully performing its obligations under the said agreement rendered and mailed a bill to the State for the sum of $843.40, a true copy is attached to the complaint herein, and marked exhibit B.
"That the appropriation out of which the bill was payable had lapsed at the time the bill was mailed, and the funds to pay said bill were no longer available to the Division of Waterways, and Indiana Harbor Belt Railroad Company was so advised by letter, a true copy of which is attached to the complaint herein as exhibit C.”

A report of the Department of Public Works and Buildings, signed by Francis S. Lorenz, Director of the Department of Public Works and Buildings, and bearing the recommendation of John C. Guillou, Chief Waterway Engineer, acknowledges the agreement to reimburse claimant for engineering and inspection expenses, and sets forth the amount of $843.40 as being due and owing claimant. It further states that, unless lateness in submitting statement may preclude payment of such claim, claimant is entitled to receive payment for such services.

From the record submitted in this case, it appears that the amount of $843.40 is now due and owing claimant by respondent. The claim in that amount is hereby allowed, and claimant, Indiana Harbor Belt Railroad Company, a Corporation, awarded the sum of $843.40.


text:
    (No. 5148
    Central Landscaping, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Central Landscaping, Inc., A Corporation, Claimant, pro se.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Pezman, J.

The complaint in this case was predicated upon an oral contract entered into with the Department of Public Works and Buildings, Division of Highways, prior to May 13, 1963, whereby claimant, Central Landscaping, Inc., a Corporation, agreed to trim and remove certain trees along the right of way of certain highways under the supervision and maintenance of the State of Illinois.

The Report of the Division of Highways, dated June 15, 1964, and signed by A. R. Tomlinson, Supervisor of Claims, states that the work was performed satisfactorily by claimant, inspected, approved and accepted by the Department of Public Works and Ruildings, Division of Highways. It acknowledges that the charges of $1,920.00 were the usual, reasonable and customary charges for operations of this nature, and, further, that the only reason that the bill was not paid was that it was not received by the Division of Highways until the appropriation from which payment could have been made had lapsed.

Respondent has stipulated in writing with claimant that the Departmental Report, petition and exhibits attached thereto shall constitute the record in this case.

This Court has repeatedly held that, where a contract 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, it would enter an award for the amount due. American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964; The Pittsburg and Midway Coal Mining Company, A Corporation, vs. State of Illinois, Case No. 5147, opinion filed July 24, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Central Landscaping, Inc., a Corporation, is, therefore, hereby awarded the sum of $1,920.00.


text:
    No. 5156
    Illinois Fire-Proof Covering Co., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Lewis, Overbeck and Furman, Attorneys for Claimant.
    William G. Clark, Attorney General, for Respondent.
   Pezman, J.

On or about the 30th day of March, 1962, claimant, Illinois Fire-Proof Covering Company, an Illinois Corporation, entered into a written contract with respondent, the State of Illinois acting by and through its agent, the Department of Public Works and Buildings. In it claimant agreed to do certain pipe coverage work in an addition to the Junior Livestock Building, Illinois State Fair Grounds, Springfield, Illinois.

The instant claim in the amount of $2,826.90 arises from said contract, and represents the unpaid balance thereon.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

“Illinois Fire-Proof Covering Company, an Illinois Corporation and claimant herein, was engaged in the general insulation and pipe-covering business in the City of Chicago, County of Cook, and State of Illinois, during the performance of the contract, which is attached to the complaint filed herein and marked exhibit A.
“Illinois Fire-Proof Covering Company and the State of Illinois, acting by and through its agents, the Department of Public Works and Buildings, entered into an agreement whereby the claimant agreed to do certain pipe coverage work for an addition to the Junior Livestock Building, Illinois State Fair Grounds, Springfield, Illinois, and the State was to reimburse Illinois Fire-Proof Covering Company for the cost of such work.
“The terms of the foregoing agreement and the acceptance thereof by the State are fully set forth in the complaint herein as exhibit A.
“Illinois Fire-Proof Covering Company on or about July 17, 1963, after fully performing the obligations under the said agreement, rendered and mailed a bill to the State for tire sum of $2,826.90, and that said sum became due and payable on or about August 16, 1963.
“The Supervising Architect, Lorentz A. Johanson, Department of Public Works and Buildings, State of Illinois, advised the claimant by letter that the funds making up the unpaid balance on the contract lapsed September 30, 1963.”

This Court has repeatedly held that, where a contract 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, it would enter an award for the amount due. American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964; The Pittsburg and Midway Coal Mining Company, A Corporation, vs. State of Illinois, Case No. 5147, opinion filed July 24, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Illinois Fire-Proof Covering Co., an Illinois Corporation, is, therefore, hereby awarded the sum of $2,826.90.


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    (No. 5165
    Rockford Memorial Hospital Association, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Pedderson, Menzimer and Conde, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

On July 2, 1963, it was determined by the Illinois Public Aid Commission, by and through its office in Winnebago County, Illinois, that one John Willier was eligible to participate in its Program of Assistance to the Medically Indigent Aged. Claimant in the instant case was so notified of the acceptance of the responsibility for payment of its charges by the Department of Public Aid, and proceeded accordingly.

A complaint in this matter was filed in the Court of Claims on June 16, 1964 in which request for payment of the sum of $1,399.53 was made, which sum represented charges for room, food, nursing, drugs, etc., for one John Willier for the period of April 29, 1963 to June 1, 1963. Upon application to the Court, an order was entered granting claimant permission to file an amended complaint. Said document was filed on August 20, 1964, and in same the ad damnum clause was amended, and the amount claimed is now $1,268.05.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in essence support the allegations contained in the amended complaint of claimant, and further indicates that the sum of $1,268.05 is still due and owing claimant. An amendment to the amended complaint and to the stipulation, as well as a Departmental Report filed on September 14, 1964, indicate clearly that the appropriation from which this claim could have been paid had lapsed.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964; The Pittsburg and Midway Coal Mining Company, A Corporation, vs. State of Illinois, Case No. 5147, opinion filed July 24, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Rockford Memorial Hospital Association, a Corporation, is, therefore, hereby awarded the sum of $1,268.05.


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    (No. 5169
    James Pittacora and Francis Ziegenhorn, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1964.

    Daniel P. Ward, Attorney for Claimants.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Dove, J.

The claim of James Pittacora and Francis Ziegenhorn was filed in the Court of Claims on July 3, 1964. Shortly thereafter a stipulation setting forth the facts was duly entered into by and between the attorney for claimants and the Office of the Attorney General for the State of Illinois. It provides as follows:

"That each of the two individual claimants was authorized and acting in his capacity as an employee of the State’s Attorney of Cook County on July 23, 24 and 25, 1962, when he performed his assignment of the extradition of Frederick Halstrom from Jacksonville, Florida to Chicago, Illinois for a subsequent trial in the Criminal Court of Cook County upon an indictment for burglary.
“That each of the two claimants traveled by air from Chicago to Jacksonville on July 23, spent the evening in a Jacksonville motel, traveled on July 24 to Florida State Prison in Raiford (where Halstrom was serving an armed robbery sentence, and where the claimants were informed that Halstrom would not be released into their custody until July 25), spent that evening in a Jacksonville motel, traveled on July 25 to the Florida State Prison, (where the claimants acquired custody of Halstrom) and then to the Jacksonville airport, whence each claimant returned by air to Chicago with Halstrom.
“That taxi fares were required in lieu of automobile rental expense, because of the serious nature of Halstrom’s prior offenses, and because of his attempted prison escape in the then recent past.
“That the expenses directly incident to the aforesaid official travel were:

(a) James Pittacora:

7-23: Air travel-Chicago to Jacksonville........................$60.65

Limousine travel-Jacksonville

(airport to motel).................................. 2.50

Food.............................................. 5.00

Lodging............................................ 9.27

7-24: Taxicab travel........................................ 11.00

Food.............................................. 5.00

Lodging............................................ 9.27

7-25: Taxicab travel........................................ 13.50

Food.............................................. 2.50

Air travel-Jacksonville to Chicago........................ 60.65

TOTAL..............................$179.34

(b) Francis Ziegenhom:

7-23: Expressway toll to O’Hare Field (Chicago) ..............$ .90

Air travel-Chicago to Jacksonville........................ 60.65

Limousine travel-Jacksonville (airport to motel)............ 2.50

Food.............................................. 5.00

Lodging............................................ 9.27

7-24: Taxicab travel ....................................... 11.00

Food............................................... 5.00

Lodging............................................ 9.27

7-25: Taxicab travel....................................... 13.50

Food.............................................. 2.50

Food (for Halstrom) .................................. 2.50

Air travel-Jacksonville to Chicago........................ 60.65

Air travel-Jacksonville to Chicago (for Halstrom).......... 62.45

Tips-(entire trip) ....................................' 3.00

TOTAL..............................$248.19

“That all appropriate travel vouchers required by statute (Ill. Rev. Stats., 1963, Chap. 127, Sec. 148) were submitted to the Auditor of Public Accounts after the close of the last fiscal year of the Seventy-Second General Assembly, and that, because of the resultant absence of a corresponding appropriation of State revenue, the Auditor of Public Accounts did not at any time issue a warrant to reimburse the claimants for the aforesaid expense or any part thereof.
“That each of the claimants was and is entitled to payment from the State treasury of his expenses incurred in direct incident to his official travel for the extradition of Frederick Halstrom, pursuant to statute.
“That neither James Pittacora nor Francis Ziegenhom has assigned or transferred his aforesaid claim or any part thereof, and that no principal or interest has been received thereon, and that each claimant is justly entitled to the amount claimed from the State of Illinois: James Pittacora, the amount of One Hundred and Seventy-nine dollars and Thirty-four cents ($179.34); and Francis Ziegenhom, the amount of Two Hundred and Forty-eight dollars and Nineteen cents ($248.19).”

Chap. 60, Sec. 41 of the 1963 Ill. Rev. Stats., provides as follows with reference to extradition expenses: “When the punishment of the crime shall be the confinement of the criminal in the penitentiary, the expenses shall be paid out of the State treasury.”

It appears that all qualifications for an award have been met in the instant case. Claimant, James Pittacora, is hereby awarded the sum of $179.34; and, claimant, Francis Ziegenhorn, is hereby awarded the sum of $248.19.


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    (No. 5177
    Orest Bayuk, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1964.

    Newton Dale Hacker, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Dove, J.

On August 27, 1964, claimant, Orest Bayuk, filed a complaint seeking refund of the Responsibility Security Fund deposited with the Secretary of State of the State of Illinois, as required by Section 42-12 of the Motor Vehicle Law of the State of Illinois.

A stipulation was entered into by and between the attorney for claimant and the Attorney General for the State of Illinois. From such stipulation it appears:

1. That on or about August 23, 1959, claimant, Orest Bayuk, was involved in an automobile accident at Lake Zurich, Illinois.

2. That on or about November 25, 1959, claimant deposited with the Secretary of State of Illinois One Thousand Two Hundred Sixty Dollars ($1,260.00) as Financial Responsibility Security, as required by Section 42-12 of the Motor Vehicle Laws of the State of Illinois.

3. That all claims regarding said accident have been disposed of.

4. That more than three years have elapsed since the security deposit was deposited with the Secretary of State; that application for refund was not made within the stated time period; and, claimant’s security deposit was transferred to the General Revenue Fund in the State Treasury, pursuant to Chapter 95Vz, Par. 7-503, Ill. Rev. Stats.

5. That, on September 27, 1963, a demand was made upon the Secretary of State for a refund of said security deposit.

6. That claimant has not received a refund of the security deposit from the Secretary of State of Illinois; that no assignment or transfer of the claim has been made by claimant; and, that said claimant is justly entitled to the sum of One Thousand Two Hundred Sixty Dollars ($1,-260.00) from the State of Illinois.

Sec. 7-503, Chap. 95%, Ill. Rev. Stats., provides that any person having a legal claim against such deposit may enforce it by appropriate proceedings in the Court of Claims. The Court is of the opinion that claimant has complied with the statute, and is justly entitled to a refund.

An award is accordingly made by this Court to claimant, Orest Bayuk, in the amount of $1,260.00.


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    (No. 4921
    W. G. Crites and Bertha Crites, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1964.

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

Claimants, W. G. Crites and Bertha Crites, seek recovery of $43,050.00 for alleged damage to the value of their real estate resulting from actions by the State of Illinois.

Claimants allege that since prior to 1954 they owned, in joint tenancy, Lots Two and Four in County Clerk’s Subdivision of the Southwest Fractional Quarter (SWFR %) of Section 8, Township 19 North, Range 11 West of the 2nd P. M. in Vermilion County.

They further allege that in 1954 respondent sought to acquire title to a portion of Lot 2 for the purpose of improving U.S. Route No. 150, also known as Illinois State Bond Issue Route No. 1, along the westerly boundary of Lot 2; that, in negotiations for such title, the State entered into an agreement to pay to claimants a sum of money for the portion taken, and for damages to that portion not taken. In addition thereto, and as part of the consideration thereof, respondent allegedly agreed to replace one large existing driveway giving Lot 4 access to the westerly side of Route No. 150 with two new driveways or accesses from said highway to Lot 4; that pursuant to the agreement the State did construct the improvements to the highway, including the accesses or driveways to Lot 4; that thereafter, on or about July 8, 1958, the State of Illinois caused the driveways to be torn out, and a solid curbing built the entire length of Lot 4 along the highway without the knowledge, consent, or approval of claimants, thereby depriving claimants of all direct access from said Lot 4 to the highway, and thus lessening the value of Lot 4.

Claimants further contend that Lot 2, described above, is bounded on the north and west by the Big Vermilion River, which flows in a northeasterly direction along the west boundary of said tract; that, immediately west thereof said river is crossed by a bridge erected on Illinois State Bond Issue Route No. 1; that said Big Vermilion River is a natural water course, and at all times claimants have been entitled to the unobstructed flow of said waters along the boundary of the above described property; that the State of Illinois entered into contract with the McCalman Construction Company, a Corporation, to construct a new bridge across said Big Vermilion River immediately west of the property above described, which contract contained a provision for removal of the existing structure, and provided that there should be incorporated into said contract by reference the standard specifications for road and bridge construction promulgated by the State of Illinois Department of Public Works and Buildings, Division of Highways; that, in violation of the requirements of said contract and standard specifications, the State of Illinois permitted the McCalman Construction Company to deposit said existing structure in the bed of the Big Vermilion River instead of removing the same, thereby altering the force and direction of the current of said Big Vermilion River, and, as a direct and proximate result thereof, claimants’ land has been subjected, and is being subjected to excessive erosion along the boundary thereof, and during periods of high waters has been, and is being subjected to flooding to the damage of claimants.

That the right of access to an existing public street or highway is a valuable property right, which cannot be taken away or materially impaired without just compensation, has been established in Ill. Rev. Stats., Chap. 121, Sec. 2-210; Department of Public Works and Buildings vs. Mabee, 22 Ill. (2d) 202; Department of Public Works and Buildings vs. Wolf, 414 Ill. 386, 111 N. E. (2d) 322; and Ill. Malleable Iron Co. vs. Com'rs of Lincoln Park, 263 Ill. 446, 105 N. E. 336.

It has further been determined that it is the right of every owner of land, over which a stream of water flows, to have it flow in its natural state and with its quality unaffected. (Cook vs. City of DuQuoin, 256 Ill. App. 452, and Fenwick vs. Bluebird Coal Co., 12 Ill. App. (2d) 464.)

It is not a simple task to evaluate what damage, if any, was caused to claimants’ properties by respondent’s actions. In original hearings a wide disparity resulted from the conflicting appraisals of various “experts.” To more equitably resolve this issue, it was necessary to hold supplemental hearings, and an independent investigation as well was undertaken by Commissioner John P. Simpson.

The measure of damages, if any, is the difference between the fair cash market value of the property immediately after the improvement. Tipps vs. State of Illinois, 21 C.C.R. 581 at 584. (Improvements in this case were made approximately in July, 1958.)

We find that the removal of access in this instance did in fact limit the full and unobstructed use of claimants’ property. It is still, however, extremely valuable property. In our opinion the reasonable differential in market value immediately before and after the actions of respondent is $5,000.00.

We are also of the opinion that six acres of Lot 2 were in fact damaged by respondent’s activities in the adjacent river. We find that claimant suffered a loss of $1,500.00 in the value of said property.

We, therefore, award to claimants the sum of $6,500.00.


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    (No. 5076
    Clarence M. Lee, as Administrator of the Estate of Maggie M. Lee, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1964.

    R. W. Harris, Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant seeks recovery of $25,000.00 for the death of his wife, Maggie M. Lee, on May 23, 1962, while she was driving on Illinois State Bond Issue Road No. 34 in Saline County, Illinois.

The evidence shows that claimant’s intestate was driving a 1955 Plymouth automobile in a northerly direction along the highway when the front wheel of the motor vehicle dropped off the paved portion of the highway onto the lower east shoulder. She drove back onto the pavement, and the car went out of control, crossed the pavement into the southbound traffic lane, came back into the northbound traffic lane, and then onto the east shoulder of the roadway into a ditch on the east side. The car spun around, overturned on its left side, then uprighted, and headed in a southerly direction where it came to a rest.

Claimant contends that respondent failed to maintain the roadway in a reasonably safe condition; that the shoulder was not even with the surface of the roadway on the east side of the highway; and that, as a proximate cause of such negligence, the accident resulting in the death of claimant’s intestate occurred.

Ida Eubanks, the sister of Maggie Lee, testified that she and Mrs. Lee were traveling from Rosiclare, Illinois to Harrisburg. Mrs. Lee was driving, and Mrs. Eubanks was riding in the front seat. The weather was clear, the sun was shining, and the pavement was dry. According to Mrs. Eubanks, Maggie Lee was driving her car about 45 or 50 miles per hour, and that, when she drove too close to the edge of the pavement, the car dropped off onto the shoulder. The witness had not looked at the speedometer, but estimated the speed at which the car was being driven. She testified that her sister had both hands on the steering wheel; that, when the car dropped off the edge of the pavement, she turned back sharply; and, when the car started back, it returned to the pavement, whirled to the left, went back to the right, and then clear across the pavement on the other side. According to Mrs. Eubanks, Mrs. Lee’s brakes were on when she turned back to the right. Mrs. Eubanks estimated that the shoulder of the road was about five or six inches lower than the surface of the road. She stated that there were no cars approaching them from the other direction, and there were no cars behind them.

Guthrie Alexander, an Illinois State Trooper, testified that he investigated the scene of the accident. The shoulder of the road seemed to be two to three and one-half inches lower than the road. The tracks first ran off the road on the right, veered across and off the highway on the left, back across the highway, and off into the field where the car was resting. He arrived at the accident scene about ten minutes after it occurred.

Cassidan McDaniel arrived at the scene of the accident about an hour after it occurred, and described the level of the highway as about three or four inches higher than the shoulder.

Joan Mason, who drove to the scene of the accident after it occurred, stated that the difference in the level of the roadway and the shoulder was two to three inches.

Ethlene Vaughn, who arrived at the scene of the accident at about the time it occurred, testified that she did not notice the difference in the road level at the time. However, she had seen it since that time, and observed that the difference in level was about three or four inches.

Louie Furlong testified that he was employed in the maintenance of the highway, which included the areas of Routes Nos. 34, 146 and 145. He was engaged in a mowing operation on the right-of-way of Route No. 34 south of Harrisburg when the accident occurred. He was standing on a hill flagging autos over it, and observed the car driven by Maggie Hill come around the turn, leave the pavement, and hit the shoulder. She was traveling towards him, and he observed her going off the right-hand side. After she went off the right-hand side, she “cut her car right back across the road, hit the other shoulder, cut to the right, and went off to where she ended up.” The car was about an eighth of a mile away when he saw it go off the road. About ten days before the accident, he had graded along the shoulder. In so doing, the gravel had been pushed up to the pavement, mashed, and then rolled down. The shoulder was a little lower than the pavement — about three inches. The road was graded about once every month, because it was on a turn, and the large trucks would throw the gravel away from the road. Mrs. Lee went off the pavement right after coming around the curve. She apparently failed to straighten out. The shoulder is graded with small gravel, backed, and leveled with the tractor wheels. Mr. Furlong estimated the car was traveling about 65 miles per hour.

Otis Palmer testified that he was a maintenance man with the State of Illinois Division of Highways. He was mowing grass at the time of the accident. He was going north at the time, and a sign indicating “mowing ahead” was about % of a mile behind him. He further testified that he had graded the shoulder where the accident occurred about two or three weeks prior to the accident, and had used a tractor and grader, which pulled the dirt or gravel up to the pavement, which was blacktop over concrete.

In order to recover, the following elements must be proven: (1) that claimant’s intestate was free from contributory negligence; (2) that respondent was negligent; and, (3) that such negligence was the proximate cause of the damage alleged in the complaint. It is claimant’s contention that the accident was caused by the condition of the road, in that the shoulder was several inches lower than the road, and the edge of the pavement was ragged from the blacktop.

From the testimony of the two eye witnesses in this case, it appears that Maggie Lee was contributorily negligent, and that her own actions proximately caused the accident resulting in her death. At the time she hit the shoulder, she was apparently still in control of her car. Then she turned sharply to the left. She then put on her brakes, as she came back to the right. It would seem that she did not exercise reasonable care in this situation, which would require that she attempt to enter the road gradually, and not sharply as was done.

Claimant contends that it was the jagged edge of the road, which caused Maggie Lee to leave the pavement. From the photographs submitted by claimant, and from the testimony of the witnesses, it would appear that there is no difference between the edge of the road at that point and the edge of any other blacktop road. No reason was given for Maggie Lee’s vehicle dropping off the pavement. The weather was clear, the road was dry, and the sun was shining. There were no other vehicles on the road in the immediate vicinity.

Sec. 54 of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stats., Chap. 95%, Sec. 151) provides that “upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway.” Exceptions to this rule do not apply in the instant case. Sec. 12 of that Act (Ill. Rev. Stats., Chap. 95%, Sec. 109) defines “roadway” as “that portion of a highway improved, designed, or ordinarily used for vehicular traffic, exclusive of the berm or shoulder(Emphasis supplied.)

In the case of Sommer vs. State of Illinois, 21 C.C.R. 259, this Court stated:

“We do not feel respondent has a duty to maintain the shoulders of its highways in a manner that would insure the safety of vehicles turning off onto the shoulder, for whatever their purpose might be, and then attempting to return to the roadway, while traveling at the same speed.”

While the State must use reasonable care in maintaining the shoulder of a highway, there is no basis to hold that a difference of three or four inches in the levels of the road and shoulder constitutes a dangerous condition per se.

In the opinion of this Court, claimant has failed to sustain his burden of proof that Maggie Lee was free from contributory negligence.

The claim is hereby denied.