text:
    (No. 6219
    Luvone C. Scott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1973.

    Harry S. Posner, Fred S. Posner and Samuel Bussas, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.

Luvone C. Scott, claimant, filed his claim for injuries sustained by him while he was an inmate at the Stateville Penitentiary and working on the Stateville Penitentiary Farm in Joliet, Illinois.

The record discloses that the claimant had been assigned by the respondent to labor in the corn cribs and around the farm and, in particular, in harvesting the com crop and seeing that it was placed in the crib.

On the 11th day of November, 1970, claimant was engaged in unloading a load of corn which had been brought to the place for unloading by a John Deere tractor. It appears this tractor was a John Deere of 1950 vintage, which was one of the oldest tractors in use on the prison farm. This tractor was equipped with a hand clutch rather than the ordinary foot clutch.

The record discloses that if the tractor was allowed to run while stationary, there was considerable vibration and at times this vibration would place the tractor in gear.

On the day in question, this particular tractor had brought a load of corn and it was the duty of the claimant to unload it.

Immediately before the occurrence, the rig was backed in close to the corn cribs by an inmate who stopped the tractor approximately three feet away from the claimant, got off the tractor, left the motor running and gear selector in neutral, and left the scene. It also appears that the guard, who was on this detail, was not present at this particular time.

The trailer full of corn was hitched to the tractor, and to release it, it was necessary to pull the pin on the hitch. The claimant straddled the hitch in attempting to release the pin, and while doing so, heard a snap, turned around, and the tractor, which had vibrated into reverse gear, pinned claimant between the tractor and the trailer. The tractor then ran over claimant with its right rear wheel, which was approximately five feet high with a large size tire. Claimant extracted his left leg and the tractor, still moving, caught his right leg which he freed, and it again caught his left leg, which he could not extricate.

The farm superintendent at the State Prison testified that the tractor in question was a 1957 model and operated with a hand clutch and had a separate gear selector. He also stated that the tractors that had a foot clutch were a lot safer. He also stated that the tractor in question had 50% more vibration than other tractors using a four cylinder motor because the engine is not balanced.

He further testified that despite his knowledge of the tractor’s propensity to vibrate and despite his knowledge that the hand clutch was not as safe as the foot clutch, he had instructed his drivers, when called away, to leave the engine neutral. Such a procedure required the hand clutch to be pulled back and snapped into position so that it is disengaged. If disengagement is accomplished, the tractor may be left standing in gear and it will not move. If disengagement is not accomplished, the tractor may vibrate enough to throw the vehicle back into whatever gear in which the selector was set.

The nature and extent of claimant’s serious and permanent injuries are not a subject of dispute.

Medical and hospital bills were introduced totalling $1,748.95, and a medical statement of Dr. Zeitl and State Penitentiary medical records were admitted, along with the medical records of Joliet Hospital and Dr. Duffy’s report. In addition to these reports, there was a medical report submitted by Carlos Scuderi, M.D., an orthopedic surgeon from Chicago. His report indicated there was a reduced fracture of the middle third of the left tibia held with four screws and that there was a further fracture of the middle third of the fibula without any screws. His diagnosis was “healed both bone fractures of the left leg united with very slight medial bowing, and scarification of the right loin with no apparent underlying bony or vascular pathology.” The doctor concluded by saying that the present condition of the claimant was permanent.

Immediately after the accident, claimant was taken to St. Joseph Hospital where he stayed for 17 days, and was back in the hospital on 2 or 3 occasions. He used a walker for one month and crutches for 14 months. He contends that his left leg is 2 to 2M inches shorter than his right leg, that he cannot run, and that he has difficulty in performing such simple operations as climbing stairs and putting on his trousers.

It is apparent from the record and the testimony of Captain Brown of the Prison staff that there were two other inmates injured at the same time and during the same occurrence as claimant was injured.

Respondent’s position is that claimant has failed to sustain his burden of establishing by a preponderance of the evidence that he was free from contributory negligence since claimant had no right to expose himself to a known danger and then recover damages for an injury which he might have avoided by the use of reasonable precaution, and cited the cases of Alberts vs. Continental Grain Co., 220 F. 2d 847 (7th Cir. 1955), Lovenguth vs. City of Bloomington, 71 Ill. 238, and Beidler vs. Branshaw, 200 Ill. 425.

Respondent also takes the position that claimant may not rely upon the doctrine of res ipsa loquitur because this doctrine may be invoked only on charges of general negligence, citing three cases: Jackson vs. 919 Corp., et al, 344 Ill. App. 519, 101 N.E. 2d. 594 (1951), McClure vs. Hoopeston Gas and Electric Co., 303 Ill. 89, 135 N.E. 43 (1922), and Thriege vs. State of Illinois, 24 C.C.R. 470 (1964).

In the Alberts vs. Continental Grain Co., 220 F. 2d. 847 (7th Cir. 1955) case, the claimant sustained an injury when a platform or hoist lifting a large grain hauling truck was lowered on his foot. The facts disclosed that the plaintiff had past experience with trucks and motor vehicle hoists and the Court held, as a matter of law, that plaintiff’s failure to use due care to keep his foot out of the path of the truck was negligence which contributed proximately to the injury, and made the following statement:

“A party has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of reasonable precaution.”

The State alleges that claimant, in this particular cause, knew of the condition of the tractor, and that he voluntarily placed himself in a position where the accident might happen.

In response to the question of res ipsa liquitur, respondent’s contention is that said doctrine can only be involked upon charges of general negligence, and that in the present case, general negligence was not alleged but only a specific act of negligence which caused the accident.

Respondent cites a number of cases to this effect, including Traylor vs. The Fair, 243 N.E. 2d, 200, and O’Rourke vs. Marshall Field & Co., 307 Ill. 197, 138 N.E. 625, 27 A.L.R. 1014.

The doctrine of res ipsa loquitur requires the plaintiff to establish that the injuries complained of were caused by an agent or instrumentality within the control or management of the defendant, that plaintiff was free from contributory negligence, and that the result is one normally not occurring without negligence in control or management of the agency or instrumentality.

The question before the Court thus resolves itself as to whether or not the claimant, a prison inmate who worked directly under the orders and supervision of the respondent’s agents, knowing of the propensity of this particular tractor to vibrate and go into gear, was guilty of contributory negligence. It appears from the record that it was the direct instructions of the respondent’s agents in requiring the claimant to do the work that occasioned the injuries.

It would appear that the ordinary doctrine of master and servant would not apply in a case such as this. In the ordinary master and servant case, servant has the right and ability to choose to a large degree whether he will or will not perform certain acts. This choice is doubtful in a case where a prison inmate, who takes orders directly, can be punished if they are not followed. To say the least, his right of choice is fairly limited.

This being the situation, the fact that the claimant placed himself in a position in which the accident resulted, cannot, in the opinion of the Court, be construed as contributory negligence.

The claimant has shown that this tractor was exclusively under the control of the respondent and that the injury would never have occurred without the negligence of the respondent, and that this negligence was the proximate cause of the injuries.

The question of damages cannot be measured by the amount of medical and hospital bills and the lost time alone. The “lost time” factor is negligible due to his incarceration and inability to work upon release from the prison hospital.

The medical evidence is undisputed that this is a severe and permanent injury and the record shows that there are still screws in the left tibia, which will be there permanently, and scarification of the right loin, which will also be permanent.

It is the opinion of this Court that claimant be awarded the sum of $22,000.00, less the amount due to the State of Illinois Department of Public Aid, which is in the amount of $2,799.46 as shown by respondent’s Brief, which results in a new award of $19,200.54.

An award is hereby made in the amount of $22,000.00, less the expenditures above set forth.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 73—CC—103
    National Cash Register Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 25, 1973.

    National Cash Register Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.


author: Burks, J.

text:
    (No. 6891
    Illinois Education Association, Et Al., An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 25, 1973.

    Lawrence Jay Weiner, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Burks, J.

This case was filed September 12, 1972, by the Illinois Education Association, an Illinois Not-For-Profit Corporation, and various named individuals, as individuals, and on behalf of all other participants, members, annuitants, and beneficiaries of three specific pension funds: (1) the Teachers Retirement System of the State of Illinois; (2) the State Universities Retirement System; and, (3) the Public School Teachers Pension and Retirement Fund of Chicago.

Claimant’s suit is based upon undisputed allegations that the State of Illinois, respondent, has failed to make its contributions to the aforesaid pension systems as required by law [Ch. 108½, Sec. 15-101 et seq., Sec. 16-101 et seq., and Sec. 17-101 et seq., Ill.Rev.Stat., 1971]; and that such failure on the part of the respondent is a breach of the State’s contractual obligations to the members and beneficiaries of the pension systems, said contractual obligations being established by statute and by the 1970 Illinois Constitution, Art. XIII, Sec. 5.

Claimant seeks an order or decree from this court determining the State’s liability as to his claim and rendering an award, or judgment, consistent with its findings.

The petition invokes the court’s jurisdiction under Sections 8a and 8b of the Court of Claims Act [Ch. 37, Sec. 439.8a and b, Ill.Rev.Stat., 1971]

This case is one of first impression in Illinois. Hence we have deliberated cautiously and at length on the question of the jurisdiction of this court over the subject matter of this claim. At our request, both parties have favored us with exhaustive briefs on the question of jurisdiction. Oral argument was heard by the court en banc on March 2,1973, primarily on the question of jurisdiction, a question on which we now express our comments and conclusion.

The legislature created this court and granted it exclusive jurisdiction to hear and determine all claims against the State of Illinois. As set forth in §8 of the Court of Claims Act, the court’s exclusive jurisdiction includes:

(a) All claims against the State founded upon any law of the State of Illinois . . . and

(b) All claims against the State founded upon any contract entered into with the State of Illinois.

Since this case is founded upon both (a) a law of this State and (b) an alleged contract with this State, the Court of Claims has exclusive jurisdiction if the case is, in fact, “a claim against the State, cognizable by the court” as contemplated by the following §23 of the Court of Claims Act:

“It is the policy of the General Assembly to make no appropriation to pay any claim against the State, cognizable by the court, unless an award therefor has been made by the court.” [Ch. 37 “Courts”, Sec. 439.23, Ill.Rev.Stat., 1971] (Emphasis added.)

Is this a claim against the State within the meaning of the above §23? If so, it differs from all other causes of action under our jurisdiction. In all other claims that have come before us, a claimant seeking a money judgment must prove actual damages measurable in financial loss.

For example, a claimant may be awarded damages for personal injuries caused by the State’s negligence in maintaining a stop sign at a highway intersection. However, a citizen who merely sees the potential danger in a downed stop sign does not have a “claim” against the State unless he suffers some actual damage caused by that situation and proves that the State’s negligence was the proximate cause of his financial loss.

In the case before us, the complaint does not charge that any teacher or member has ever suffered any financial damage or failed to receive full pension benefits as provided by law.

We first viewed the situation as being somewhat analogous to the federal Social Security System. Last year Congress abandoned all pretense of an “actuarially sound” trust fund for Social Security and provided that benefits would be financed by each year’s social security tax from wage earners. Yet, as stated in a recent article by E. L. Dale, Jr., “No one’s benefits — present or future — are in jeopardy. Social Security payments will stop only on the day that the U.S. government stops paying its bills.”

The court felt that the same conclusion would apply to any pension or retirement system created by the State of Illinois so far as the payment of all benefits is concerned. However, the power of the Congress to change the social security law is apparently without any such constitutional limitation as now seems to be imposed on the Illinois Legislature by our 1970 Constitution in Article XIII, §5:

“PENSION AND RETIREMENT RIGHTS

*“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

The above section was adopted by the Sixth Illinois Constitutional Convention on July 21, 1970. After reading the verbatim transcript of that Convention’s debate on the adoption of this section, we must conclude that this constitional mandate was intended to establish the enforceability of the contractual rights of the claimant in this action. This provision is much more explicit and affirmative than the general language of Art. I, Sec. 16, which merely forbids any law “impairing the obligation of contracts.”

The same Article XIII of the 1970 Constitution which declares the claimant has enforceable contractual rights, also delegates to the legislature the authority to prescribe the manner and form in which claimant may seek to enforce his rights against the state by a court procedure. Article XIII, Sec. 4 (effective January 1, 1972) abolished sovereign immunity in this state “except as the General Assembly shall provide by law.” The General Assembly responded by enacting P.A. 77-1776 (also effective January 1,1972) which re-enacted the Court of Claims Act (Ch. 127, Sec. 801, Ill.Rev.Stat., 1972 Supp.):

“Except as provided in.. .[the Court of Claims Act] . .. the State of Illinois' shall not be made a defendant or party in any court.”

The legislature has thus declared that the only court room door which is open to any claimant having a cause of action against the State of Illinois is the door of the Court of Claims. This conclusion was firmly supported by a recent decision of the Illinois Appellate Court in Chicago Welfare Rights Org. vs. Weaver, 5 Ill. App. 3d (1972) 655. The Supreme Court of Illinois has previously upheld the exclusive jurisdiction of this court in certain causes of action against the State. Its most recent pronouncement is stated in Edelen vs. Hogsett, 44 Ill.2d (1970) 215.

It seems clear, therefore, that this court’s jurisdiction has been properly invoked by the claimant in this case. The Attorney General confirms this in a brief filed on behalf of the respondent.

It seems equally clear that, since no other court, state or federal, has the requisite jurisdiction over this matter, this court must exercise its jurisdiction in this cause. Otherwise the claimant would be deprived of his constitutional rights under Article I, Sec. 12 of our 1970 Constitution which states that “every person shall find a certain remedy in the laws for all injuries and wrongs ...” (The 1870 Bill of Rights counterpart merely stated that “every person ought to find a remedy in the law----”) (Emphasis added.) We turn then to such remedy as may be available to the claimant in this suit.

There are no significant issues of law or fact which are in dispute in this matter. At the time oral argument was heard by the court on March 2, 1973, the parties filed stipulations as to the State’s unfunded statutory obligations to the Teachers and the Universities Retirement Systems. Still pending, and apparently unresolved by the parties hereto, is the status of the Chicago Teachers Fund. Accordingly, this opinion is confined to the Downstate and University Teachers Funds.

These obligations, founded upon statute, are clearly set forth in Ch. 108½, Ill.Rev.Stat., 1971:

Section 15-155 provides: Employer contributions. The State of Illinois shall make contributions by biennial appropriations of the amounts which, together with the other contributions of employers out of trust, federal, and other funds under their control, the contributions of the participating employees, income from investments, and other income of this system, will be necessary to meet the costs of maintaining and administering this System:

(1) the total amount of the employer contribution for any fiscal year shall be the sum of the amounts estimated to be required, on the basis of the actuarial tables adopted by the board and the prescribed rate of interest to meet the disability benefits, additional death benefits, the employers’ portion of the cost of all annuities and survivors insurance benefits and expenses of administration expected to be paid during the year and to result in the accumulation of assets at the end of the year equal to the sum of the following:

(a) the liability for all annuities expected to be paid to the then annuitants, and the survivors insurance benefits expected to be paid;

(b) the liability for all accumulated additional, normal, and survivors insurance contributions of the then participants;

(c) the single premium reserve required for the employers’ portion of the cost of all annuities which have then accrued because of previous earnings of the then participants;

(d) additional reserves which may reasonably be required because of variations in mortality, interest, and turnover experience.

In determining the employer contributions, the board shall include the amount which is required to amortize the cost of acquisition of land and the construction of an office building thereon over a period not exceeding 30 years, including interest at the rate of 6% per anum, less the estimated amount of rentals which may be received from the lease of surplus space in the building.

The contributions of employers from State appropriations for any fiscal year shall not be less than an amount which is required to fund fully the current service costs in accordance with actuarial reserve requirements as prescribed in paragraph (1) of this Section, plus interest at the prescribed rate on the unfunded accrued liabilities.

If an employee is paid from trust or federal funds, the employer shall pay to the board contributions from these funds which are required to fund fully the current service costs in accordance with the actuarial reserve requirements as prescribed in paragraph (1) of this Section. Funds of the alumni associations, foundations, and athletic associations which are affiliated with the universities included as employers under this Article and other employers which do not receive State appropriations are considered as trust funds for the purpose of this Article.

(2) the total employer contribution shall be apportioned among the various funds of the State and other employers, whether trust, federal, or other funds, in accordance with actuarial procedures approved by the board.

The contributions of the State of Illinois for employers which receive appropriations from the State for personal services shall be payable from appropriations made to the employers. The contributions for Class I junior colleges shall be payable solely from appropriations to the Illinois Junior College Board for employer contributions. Class I junior colleges making employer contributions prior to the effective date of this amendatory Act of 1967 shall be reimbursed by the Illinois Junior College Board upon the filing of a claim for reimbursement in the manner prescribed by the Board. The Auditor of Public Accounts shall draw warrants payable to the treasurer of the system upon proper certification by the system, by the Illinois Junior College Board or by the employer in accordance with the laws making such appropriation.

Section 15-156 provides: Obligations of state. The payment of (a) the required State contributions, (b) all benefits granted under this system, and (c) all expenses in connection with the administration and operation thereof are obligations of the State of Illinois to the extent specified in this Article.

Section 16-158 provides: Contributions by state and other employing units. The State shall make contributions from the common school fund and other state funds to this system of the amounts required to meet the obligations of the State for the next fiscal year as provided in Sections 16-159 and 16-160. Such amounts shall be no less than 1.2 multiplied by members’ contributions and be certified by the board to the Superintendent of Public Instruction and Auditor of Public Accounts.

If employees are paid from special trust or federal funds which are administered by the employing unit, whether school district or other unit, the employing unit shall pay to the retirement system from such funds the full accruing retirement costs based upon such service as determined by the Board of Trustees of the Teachers’ Retirement System.

Section 16-162 provides: Obligations of State. Payment of the required State contributions and of all pensions, annuities, retirement allowances, death benefits, refunds and other benefits granted under or assumed by this retirement system, and all expenses in connection with the administration and operation thereof, are obligations of the State. [Emphasis supplied]

The meaning and intent of the above statute seems clear and unequivocal. The legislature has created a de facto contract between the State and the members of the pension funds, an “enforceable contractual relationship” according to Article XIII §5 of the Illinois Constitution. The teachers, on their part, have performed their obligations thereunder to make contributions to the system from their salaries in specified amounts as required by §16-152 and §15-157 of the Acts. These contributions are automatically deducted from teachers salaries and are a condition of employment. The said contract remains executory on the part of the State.

Both parties to this action, in their briefs and oral arguments, agreed that this court cannot compel the legislature to make any appropriations. Fergus vs. Russell, 277 Ill. 20 (1917). Nor, according to the briefs filed by the parties in this cause, could any other court force such action on the legislature by decision, injunction or mandamus. To do so, they have suggested, would be violative of the doctrine of the separation of powers. We are reminded of a historic decision of the U.S. Supreme Court in 1832 which enraged President Andrew Jackson, Worchester vs. Georgia, 6 Peters 561-63. The President is reported to have said, “John Marshall has made his decision; —now let him enforce it!”

As we have said, this case is one of first impression in Illinois. In the states of Washington, California, Arizona and Pennsylvania, we find cases similar to the matter before us in which the courts have ruled that public pension rights are contractually enforceable against municipalities. Bakenhus vs. Seattle, 48 Wn. 2d 695, 296 2d 536 (1956); State ex rel. Weaver vs. Evans, Supreme Court Cause No. 41851 (1972); Allen vs. Long Beach, 45 Cal. (2d) 128 (1955); Lyon vs. Flournoy, 76 Cal. Rep. 869 (1969); Yeazell vs. Copins, 89 Ariz. 109 (1965); Hickey vs. Pittsburgh Pension Board, 378 Pa. 300, 106 A. 2d 233, 52 ALR 2d 430 (1950).

Perhaps the leading case from other jurisdictions, and the only case we have noticed in which a writ of mandamus issued against a legislative body, was Dombrowski vs. City of Philadelphia, 431 Pa. 199, 245 A. 2d 238 (1968).

In Dombrowski the Supreme Court of Pennsylvania affirmed the issuance of a writ of mandamus (under a liberal Mandamus Act and where no Court of Claims existed) compelling the city to make appropriations to its retirement system assuring the actuarial soundness required by its Home Rule Charter. Citing a long line of Pennsylvania authority, the court noted that the entire theory of vested rights in public retirement benefits is a direct outgrowth of the contractual concept of pensions. The court went on to find that the relators’ contractual relationship with the city stemmed from a duty imposed by law, being the creation and administration of a retirement system, and that as a party to the contract he had standing to seek the writ (245 A. 2d 238, 245). That the failure of the city to provide contributions adequate to keep the retirement fund on an actuarially sound basis resulted in impairment of a contract obligation was clear:

“In essence, then, Dombrowski was attempting to assure himself and all other members of the Philadelphia municipal retirement system that sufficient funds would be present to meet his and others’ retirement payments. Part of his contract with the city was a promise made by the city, in its Home Rule Charter, that the retirement system would be actuarially sound. The court below found, a finding not here disputed, that the city had not kept its promise. Dombrowski is thus suffering a present impairment of his contractual rights and thus an immediate injury.” Id., 246-47 (emphasis supplied)

The court was not impressed with the suggestion that if in due course the relator did not receive his retirement benefits he would sue the city for breach of contract, enter judgment and execute upon city property, the duty to pay the pension being an obligation of the municipality. Nor was his injury by virtue of the failure to provide reserve funding deemed less immediate because there was a prospective future cause of action for breach. Concluding that the suit was properly brought in the individual capacity of the relator as a not yet retired member of the retirement system, the court held:

“It is Dombrowski’s contractual relationship with the city that is impaired by the city’s failure to comply with its own Home Rule Charter and this immediate impairment supports his standings; that appellee might be able through judgment and execution to obtain the funds due him in 1972 does not prevent him from asserting in 1968 a present impairment of contractual rights.” Id., 248.

This Pennsylvania case of Dombrowski could not be followed in Illinois for several obvious reasons. There is no procedure for mandamus against the state legislature, and certainly not in this court which has exclusive jurisdiction over the subject matter of this claim. Although, as suggested in Dombrowski, there is a present impairment of claimant’s contractual rights, claimant has shown no actual damages, measurable in dollars, which could be a reasonable basis for an award by this court. We recognize, of course, the desirability of full funding, accruing interest to accumulated reserves, and the avoidance of crushing future unfunded liabilities.

As previously stated, claimant’s suit seeks an award by this court pursuant to §23 of the Court of Claims Act. In so doing, he is employing and exhausting his statutory remedies, and fortifying his argument on the constitutional issues. Claimant may be mindful of the following statement by the Supreme Court in Edelen vs. Hogsett, 44 Ill.2d 215 (1969) at page 219:

“Were it not for the existence of the Court of Claims Act, appellant’s argument might be of some substance, but the existence of that legislation, modifying the State’s immunity from suit, and the failure of the appellant to seek remedy thereunder, in our judgment renders his constitutional argument inappropriate and not cognizable by this court in the posture in which it is here presented.”

We are impressed with the diligence of counsel for both sides in their efforts to work out a practical solution to this difficult problem, and exhibiting, as they have, a sympathetic understanding of the impact of a payment for the full amount of the state’s liability to the respective funds. As of this date the full amount apparently would be in excess of two billion six hundred million dollars. The parties have proposed to amortize said liability over a 50 year period. While the said proposal has been approved as actuarially sound, we cannot enter an award based thereon. We feel that the finding of this court must be in the nature of a declaratory judgment, pursuant to § 57.1 of the Civil Practice Act, a declaration of claimant’s rights as we see them, and leaving the amount of any consequential relief to the discretion of the legislature.

It is the opinion of this court that the members, annuitants, and beneficiaries of the Teachers Retirement System of the State of Illinois, and of the State Universities Retirement System are parties to a constitutional and statutory contract with the State of Illinois; that the 1970 Constitution describes their rights thereunder as enforceable, and that the State of Illinois has failed to meet its statutory obligations regarding its indebtedness to these two funds as follows:

Teachers Retirement System of the State of Illinois

$1,748,375,624.00 1. Due as of June 30, 1971:

88,179,200.00 2. Due as of June 30, 1972:

3. Due as of June 30, 1973: 105,820,000.00

4. Due for Fiscal Year 1974: 205,600,000.00

$2,147,974,824.00

State Universities Retirement System

1. Due as of August 31, 1971: $ 311,336,000.00

2. Due as of August 31, 1972: 90.085.722.00

3. Due as of August 31, 1973: 53.065.507.00

4. Due for Fiscal Year 1974: 55.882.691.00

$ 510,369,920.00

Finally, we take judicial notice of the fact that there are now bills pending in the General Assembly which appropriate monies to the Teachers Retirement System as suggested in the stipulation filed herein on March 2, 1973. We also take notice of published reports to the effect that the Governor has now proposed a full scale examination of all public pension programs with a view toward eventually working out an equitable approach.

      “Congress Gets a Grip on Social Security” by Edwin L. Dale, Jr., member of the New York Times Washington Bureau, Chicago Tribune, January 21,1973. Sec. 2, page 1.

      The Pennsylvania Mandamus Act provided (Section 3, 12 P.S. §1914): The writ of mandamus may issue upon the application of any person beneficially interested.”


author: Per Curiam.

text:
    (No. 73-CC-113
    Fairgrounds Manor Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 28, 1973.

    Fairgrounds Manor Inc., Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-180
    American Petroleum Institute, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed June 28, 1973.

    American Petroleum Institute, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-189
    Sears, Roebuck and Company, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed June 28, 1973.

    Sears, Roebuck and Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-244
    Phillips Petroleum Company, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed June 28, 1973.

    Phillips Petroleum Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6934
    Couch & Heyle, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 28, 1973.

      Heyl, Royster, Voelker & Allen, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6964
    Rosecrance Homes for Children, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 28, 1973.

    Rosecrance Homes for Children, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7110
    Hugh L. Higgins and Wiley G. Yokley, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 28, 1973.

    Hugh L. Higgins and Wiley G. Yokley, Claimants, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto and the Court being fully advised in the premises;

THIS COURT FINDS that this expenditure was for the return, by the County of Macon, of fugitives from justice. The counties are required to travel to other jurisdictions for the return of fugitives when the fugitives have been located and apprehended in various jurisdictions throughout the country. The expenses herein reflect the expenses incurred by the County of Macon in sending their sheriffs and deputies to return apprehended fugitives. The investigation and reports from the Department of Law Enforcement indicate that the appropriations for this purpose were expended and a deficiency appropriation of $20,000.00 was requested. However, even before the $20,000.00 was received for reimbursing the various counties for these expenses, it became apparent that even this $20,000.00 deficiency appropriation was going to be inadequate. The original appropriation was expended and the $20,000.00 was used up also, leaving some of these expenses unpaid. Under the rules set forth in Fergus vs. Brady, 277 Ill. 272, this Court finds that inasmuch as the State was unable to anticipate the amount necessary to appropriate for this expense and that since this expenditure was one required of the State by statute, this Court awards claimants as follows:

Hugh L. Higgins............................................$269.22

Wiley G. Yokley............................................ 269.22

Total $538.44


text:
    (No. 7112
    John P. Wrigley and Sam S. Baum, Claimants, vs. State of Illinois, Respondent

      Opinion filed June 28, 1973.

    John P. Wrigley and Sam S. Baum, Claimants, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto and the Court being fully advised in the premises;

THIS COURT FINDS that this expenditure was for the return, by the County of Macon, of fugitives from justice. The counties are required to travel to other jurisdictions for the return of fugitives when the fugitives have been located and apprehended in various jurisdictions throughout the country. The expenses herein reflect the expenses incurred by the County of Macon in sending their sheriffs and deputies to return apprehended fugitives. The investigation and reports from the Department of Law Enforcement indicate that the appropriations for this purpose were expended and a deficiency appropriation of $20,000.00 was requested. However, even before the $20,000.00 was received for reimbursing the various counties for these expenses, it became apparent that even this $20,000.00 deficiency appropriation was going to be inadequate. The original appropriation was expended and the $20,000.00 was used up also, leaving some of these expenses unpaid. Under the rules set forth in Fergus vs. Brady, 277 Ill. 272, this Court finds that inasmuch as the State was unable to anticipate the amount necessary to appropriate for this expense and that since this expenditure was one required of the State by statute, this Court awards claimants as follows:

John P. Wrigley............................................$254.19

Sam S. Baum............................................... 254.19

Total $508.38


author: Perlin, C.J.

text:
    (No. 00012
    Virginia Polimeni, as wife of John Polimeni, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1972.

    Virginia Polimeni, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Perlin, C.J.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act.” The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Virginia Polimeni, is the wife of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, John Polimeni, was a volunteer fireman for the Vernon Fire Protection District, engaged in the scope of duty on June 21, 1971, within the meaning of Section 282 of the aforecited act. On said date he suffered extreme traumatic injuries resulting in his death when the fire department pumper truck he was driving failed to complete a s-shaped curve, overturned and went into a ditch. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause. . . .”

IT IS HEREBY ORDERED that the sum of $10,000.00 (TEN THOUSAND DOLLARS) be, and the same hereby is, granted to Virginia Polimeni, as wife and next of kin of the decedent, John Polimeni.


text:
    (No. 00013
    Martha Zehr, as wife of Harry Zehr, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1972.

    Martha Zehr, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Perlin, C.J.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act.” The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Martha Zehr, is the wife of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, Harry Zehr, was a policeman with the City of Fairbury, engaged in the scope of duty on October 11, 1971, within the meaning of Section 282 of the aforecited act. On said date he was injured when the police car he was driving was struck by a semi-trailer. Officer Zehr underwent brain surgery and died on February 19, 1972 as a result of cranio-cerebral injuries. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause. . . .”

IT IS HEREBY ORDERED that the sum of $10,000.00 (TEN THOUSAND DOLLARS) be, and the same hereby is granted to Martha Zehr, as wife and next of kin of the decedent, Harry Zehr.


text:
    (No. 00021
    Charles W. Williams, as father of Charles J. Williams, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1972.

    Charles W. Williams, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Perlin, C.J.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act.” The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the Claimant, Charles W. Williams, is the father of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, Charles J. Williams, was a patrolman for the Rockford Police Department, engaged in the scope of duty on May 31,1972, within the meaning of Section 282 of the aforecited act. On said date he was shot while questioning a suspect in a previously reported armed robbery. The bullet entered the skull through the right occipital bone with lacerating traumatic injury to both right cerebellar hemisphere and left cerebral hemisphere, resulting in his death on June 1, 1972. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause . . .

IT IS HEREBY ORDERED that the sum of $10,000.00 (TEN THOUSAND DOLLARS) be, and the same hereby is granted to Charles W. Williams, as father and next of kin of the decedent, Charles J. Williams.


text:
    (No. 00008
    Patricia R. Deal, as wife of Donald Deal, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1972.

      Patricia R. Deal, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, and Vincent J. Biskupic, Special Assistant Attorney General, for Respondent.
   Burks, J.

This claim, arising out of the death of a volunteer fireman, Donald Deal, of the Hoffman Estates Fire Protection District, was filed pursuant to provisions of the “Law Enforcement Officer and Firemen Compensation Act,” Ch. 48, Sec. 281 et seq., Ill.Rev. Stat., 1971. Claimant, Patricia R. Deal, is the surviving spouse of the decedent and is the lawful claimant under Section 283(a) of the Act.

A hearing in this matter was held by the Court on August 3, 1972. The facts, which are not in dispute, are as follows: Donald Deal was a volunteer fireman for the Hoffman Estates Fire Protection District at the time of his death. On August 6, 1970, he reported for a scheduled fire department drill at approximately 9:30 a.m. Prior to the start of the drill, the decedent complained of a nauseous feeling and stated that his arms felt numb. He was instructed to sit down until he felt better. While he was resting, another fireman checked him and found that his condition had not improved. At 9:53 a.m. he was discovered in an unconscious condition and first aid measures were started. He was taken by ambulance to a hospital where he was pronounced dead on arrival. The death certificate recites that the immediate cause of death was “acute myocardial infarction” with the interval between onset and death “minutes”.

Mrs. Deal testified that her husband had returned home on the morning of the incident at approximately 2:30 a.m. complaining of pains in his chest and arms. Upon arising that morning he was still complaining of the same condition. There is no evidence to show that the decedent’s death occurred during the active performance of duties as a fireman, pursuant to Section 282(e) of the Act. In fact, the Application for Benefits filed herein as well as the Attorney General’s investigative report and the testimony elicited before this Court all indicated that the decedent had neyer embarked upon the performance of his duties on the date of his death.

There being no evidence to support a finding that Donald Deal was “killed in the line of duty” as defined in the Act, this claim must be denied. It is so ordered and this claim is denied.


text:
    (No. 00014
    Bettie A. Wilkes and Sybil M. Wilkes as designated beneficiaries of George A. Wilkes, deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 27, 1972.

    John Andringa, Attorney for Claimants.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, and Vincent J. Biskupic, Special Assistant Attorney General, for Respondent.
   Burks, J.

This claim, arising out of the death of Lt. George A. Wilkes of the Chicago Fire Department, was filed pursuant to the provision of the “Law Enforcement Officer and Firemen Compensation Act.” Ch. 48, Sec. 281 et seq., Ill.Rev. St at., 1971.

The claimants, Bettte A. Wilkes and Sybil M. Wilkes, are named beneficiaries under the Application for Benefits which was duly filed. The case was heard by the Court on August 3, 1972, and the following facts were elicited:

Lt. George A. Wilkes was a fireman employed by the Chicago Fire Department assigned to firehouse 101 in the City of Chicago at the time of his death on April 12,1970. The claimants contend that the decedent accidentally struck his leg on a step while descending the firehouse stairs on March 18, 1970, and that this incident was the cause of his death almost one month later. Respondent denied that any such incident took place and further contended that there was no causal connection between the alleged incident and the death of Lt. Wilkes.

Testimony showed that Lt. Wilkes was the officer in charge of firehouse 101 on the date of the alleged incident, March 18, 1970, and that one of his duties was to maintain the log kept at the firehouse. Lt. Wilkes had long experience in maintaining the log records and knew that it must contain a report of all accidents. There is no notation of an accident occurring to Lt. Wilkes on the day in question. His wife, one of the claimants herein, delivered a report to Lt. Wilkes’ immediate superior on March 20, 1970, which indicated that the decedent would be unable to return to work for a period of one week. March 20th was to be the next assignment day for Lt. Wilkes since it was the policy of the Chicago Fire Department that all men would work 24 hours on and 48 hours off.

Submitted in evidence was a report from Dr. Herold Thatcher indicating that Wilkes had been seen by him on March 19, 1970, and that a diagnosis of “thrombophlebitis” was made. The date of the report was May 14, 1970, over one month after the date of death of the decedent. The report also noted that as of the 19th of March, 1970, the decedent’s complaint had been of two days duration and also noted that Mr. Wilkes was last seen on March 31,1970, at which time his condition had improved.

The coroner’s certificate of death, introduced into evidence, described the cause of death as a “stroke, cerebral hemorrhage.”

The respondent offered the testimony of two witnesses, former Division Marshal Robert Fairbanks and Captain Thomas Murphy. Former Division Marshal Fairbanks testified that he had a conversation with the decedent on March 18, 1970, at which time he noticed that the decedent was limping and inquired as to the cause. The decedent told him that several years ago he had suffered frostbite and periodically he suffered severe pain in the lower calf area of the right leg.

Lt. Wilkes did not file an accident report of his alleged accidental injury as required by departmental rules. The Court does not hold that such a violation of the employer’s rules would, per se, foreclose claimants’ rights under the LEOFC Act. This Court has followed the rule expressed in numerous Workmen’s Compensation cases holding that an employee’s violation of the employer’s rules indicates that he is “only guilty of negligence which will not preclude an award of compensation.” I.L.P. Workmens Compensation Section 158; Hertel vs. State, 1939, 11 Ill. Ct. Cl. 86. However, the absence of any report of the alleged accidental injury in the records of the Chicago Fire Department does increase claimants’ burden of proving that decedent was in fact injured; that he was “injured in the active performance of his duties as a fireman”; and that his death resulted from that injury. Ch. 48, Sec. 282(e), Ill.Rev.Stat., 1971.

Gould’s Medical Dictionary defines thrombophlebitis as “inflammation of a vein associated with thrombosis”. There is no indication in the doctor’s statement that this was caused by an accidental injury and we find no basis for holding that this may be reasonably inferred. In fact, the manifest weight of the evidence is to the contrary.

No objection was raised to the testimony of Marshal Fairbanks on the grounds that it might be hearsay. Nevertheless, the Court weighed the admissibility of this testimony since it was obviously against claimants’ interest. The LEOFC Act does not change the rules of evidence, and the admissibility of evidence in claim proceedings is covered by rules of the Civil Practice Act and the rules of the Supreme Court as stated in Rule 2 of this Court. In the applicable rules, we hold that Marshal Fairbanks’ testimony was admissible as being a part of the res gestae and as an admission. I.L.P. Workmens Compensation §342.

Finally, the death certificate states that the cause of death was a “stroke, cerebral hemorrhage.” Claimants contend that Dr. Glass, the physician signing the death certificate, “did not perform a diagnosis” of the alleged previous accident and did not have sufficient information on which to base a valid conclusion. Nevertheless, the death certificate must be considered by the Court for such probative value as it may have in the light of claimants’ objection, and in the absence of any significant evidence to contradict it.

The Court is bound by the language of the statute which is a special act for the payment of compensation only in cases in which an officer is “killed in the line of duty.” To qualify under this Act, claimants must prove by a preponderance of the evidence that the deceased officer lost his life “as a result of injury received in the active performance of his duties” and that “the injury arose from violence or other accidental cause.” The evidence submitted in this case totally fails to establish the essential facts that are required to justify a finding that the officer was killed in the line of duty as required by the Act. The Court finds that Lt. Wilkes was riot killed in the line of duty as defined in the Law Enforcement Officers and Firemen Compensation Act.

IT IS HEREBY ORDERED, therefore, that this claim must be, and the same hereby is, denied.


text:
    (No. 00020
    Esther E. McBurney, as wife of Louis O. McBurney, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1972.

    Esther E. McBurney, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Perlin, C.J.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act.” The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Esther E. McBurney, is the wife of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, Louis O. McBurney, was a fireman with the Bloomington Township Fire Department engaged in the scope of his duties on July 1,1971, within the meaning of Section 282 of the aforecited act. On said date he suffered a heart attack while attempting to extinguish a fire at Lot 83, Alexander Road, Bloomington, Illinois. Fireman McBurney died minutes later of acute heart failure due to or as a consequence of “Severe calcarious, healed, endocarditis of mitral valve with insufficiency” of “years”. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause . . . .”

IT IS HEREBY ORDERED that the sum of $10,000 (TEN THOUSAND DOLLARS) be, and the same hereby is, granted to Esther E. McBurney, as wife and next of kin of the decedent, Louis O. McBurney.


text:
    (No. 00023
    Joan Gallowitch, as wife of Robert L. Gallowitch, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 27, 1972.

    Joan Gallowitch, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Per Curiam.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act.” The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Joan Gallowitch, is the wife.of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, Robert L. Gallo-witch, was a policeman with the City of Chicago Police Department, engaged in the scope of duty on May 24,1972, within the meaning of Section 282 of the aforecited act. On said date he suffered a gunshot wound in the left side of his chest while attempting to apprehend a burglar in the process of holding up an Illinois Bell Telephone truck in an alley at 8649 S. Cottage. Officer Gallowitch died of his wounds at 2:40 p.m. on May 24, 1972. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause . . .”

IT IS HEREBY ORDERED that the sum of $10,000.00 (TEN THOUSAND DOLLARS) be, and the same hereby is, granted to Joan Gallowitch, as wife and next of kin of the decedent, Robert L. Gallowitch.


text:
    (No. 00002
    Mildred N. Burgholzer, as wife of William A. Burgholzer, Jr., deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1973.

    Mildred N. Burgholzer, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Perlin, C.J.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act.” The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Mildred N. Burgholzer, is the wife of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, William A. Burgholzer, Jr., was a patrolman with the Oswego Police Department, engaged in activities within the scope of duty on January 18, 1972, within the meaning of Section 282 of the aforecited act. On said date he suffered a fatal acute coronary occlusion while participating in the trailing of suspects involved in a grocery-liquor store robbery. At approximately 10:30 p.m. on the night in question, Officer Burgholzer and his partner, Sgt. Ronald Reuter, received a request from the Sheriff of Kendall County advising them tat a Trailways bus had come through the search area and it was feared that the suspects could have boarded the bus. The officers were instructed to stop the bus and make a thorough search. When the bus approached the intersection of Routes 34 and 31, the officers pulled their vehicle into the roadway blocking the bus, jumped out of their vehicle with weapons drawn. As Officer Burgholzer approached the rear of the bus he collapsed and fell to the road surface. Sgt. Ronald Reuter, who was the decedent’s partner at the time in question, gave a written statement to the Attorney General as follows:

“We were informed that weapons were used by the robbers, that they were armed and dangerous.”

Upon stopping the bus, Reuter stated:

“We both jumped out of our patrol car; I had a shotgun and Officer Burgholzer had a service revolver drawn. This was an extremely tense situation in view of our concern for the safety of the bus passengers and ourselves in the event the armed suspects were aboard.”

The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause . .

IT IS HEREBY ORDERED that the sum of $10,000 (TEN THOUSAND DOLLARS), be, and the same hereby is, granted to Mildred N. Burgholzer, as wife and next of kin of the decedent, William A. Burgholzer, Jr.


text:
    (No. 00005
    Dolores Georgean, as widow and beneficiary of Nick Georgean, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1973.

    Dolores Georgean, Claimant, pro se.
    William J. Scott, Attorney General; Vincent Biskupic, Special Assistant Attorney General and Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.

This action is brought by Dolores Georgean, as widow and designated beneficiary of Nick Georgean, deceased, pursuant to the “Law Enforcement Officers and Firemen Compensation Act,” Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971.

Claimant filed an application for benefits, a statement of the decedent’s supervising officer, designation of beneficiary, and coroner’s certificate of death. The Attorney General’s office investigated the claim, pursuant to Section 4 of the Act, and recommended that the case be set for hearing. The court, sitting en banc, heard the case on August 4, 1972.

The relevant facts, briefly, are as follows: the decedent, Nick Georgean, was an employee of the Office of the Secretary of State. He was hired on January 24, 1971, and served as an assistant supply officer from February 1,1971, until the date of his death, July 23, 1971. His duties were clerical in nature, consisting of making entries in a large log book of all traffic citations and convictions. He was also responsible for preparing various reports, notifying investigators of court dates, and occasionally accompanying investigators to court. It appeared that the decedent also assisted in the requisition and distribution of equipment, uniforms, guns, and official documents. On July 23, 1971, the decedent reported for work at approximately 8:30 a.m. During the course of the day he distributed booklets and other reference material in the supply room. He also had occasion, at least six times that day, to make entries in the log book, which weighed approximately 33 pounds. The book was an exhibit at the hearing. At approximately 2:50 p.m. Mr. Georgean collapsed. Emergency first aid was administered, and an ambulance called. Mr. Georgean was pronounced dead on arrival at Loretto Hospital at approximately 3:40 p.m.

The cause of death, according to the Coroner’s Certificate of Death, was myocardial infarction. No medical evidence was introduced at the hearing. Testifying at the hearing on behalf of claimant were the claimant herself, Robert D. Kutz, an assistant superintendent in the Secretary of State’s office, and Lieutenant Wilbur Coffey of the Secretary of State’s office.

There are two issues before this court: 1) was the decedent a “law enforcement officer” as defined in Section 281 of the Act; and 2) was the decedent “killed in the line of duty” within the meaning of the Act.

The testimony elicited before the court was to the effect that the decedent was an investigator in the Office of the Secretary of State; he wore a uniform and carried a gun. His actual title was “Assistant Supply Officer.” While there was testimony as to some of the hazards encountered by investigators for the Secretary, it seems clear that these were not the type that the decedent faced. Except for certain infrequent occasions, the decedent’s duties were purely clerical; these were the duties he was performing on the date of his death.

There were several obvious contradictions in the testimony of claimant’s witnesses. However, considering all the facts presented to the court, it is our opinion that the decedent was not a “law enforcement officer” within the meaning of the statute as we interpret it.

We are bound by the following statutory definition stated in the Act:

“Section 281(a) ‘law enforcement officer’ or ‘officer’ means any person employed by the State or a local governmental entity as a policeman, peace officer or in some like position involving the enforcement of the law and protection of the public interest at the risk of that persons life.” (emphasis added.)

The test is whether the “officer” is charged with “the enforcement of the law and protection of the public interest at the risk of his life.”

The decedent here, while undoubtedly performing a valuable service to the community, did not face the perils of a police officer as contemplated by the statute. We must view this Act to be limited by the words emphasized in the above definition. .

The apparent intent of the legislature, when it enacted this law, was to compensate beneficiaries of firemen and law enforcement officers who had risked their lives in the public interest. At the time the legislation was passed, the media was full of incidents of snipings and violent deaths of policemen and firemen. The words of limitation in the Act clearly indicate that the legislature did not intend to compensate any person in uniform for a death unrelated to the risks inherent in and peculiar to the professions of firefighting and law enforcement. Such a construction might have even made the Act unconstitutional as “Special legislation” referred to in the 1970 Illinois Constitution, Article IV, §13. We are confident that this was not the legislature’s intent. It is our obligation, as it is of all courts of record, to presume that the legislation is valid and constitutional where it can be so construed. 11 I.L.P. Constitutional Law §67.

Mr. Kutz and Lieutenant Coffey testified as to the general nature of duties for investigators of the Secretary of State’s office. This testimony was impeached, however, by the admission into evidence of Attorney General’s Exhibit 1) affidavit executed by Coffey, which reflected that, with the exception of the first week of his employment, the decedent’s duties had no bearing on any law enforcement obligation. Accordingly, while some Secretary of State’s “investigators,” assigned to hazardous duties, might be eligible “officers” under this Act, the decedent in this case was not.

Having found that the decedent did not come within the statutory definition of a “law enforcement officer”, it is not necessary for the court to consider the second issue presented. However, some ambiguity in the statute, as well as the recurring question in other cases, necessitates some general guidelines and principles regarding heart-attack cases.

In determining when an officer’s death from a heart attack may be compensable under the Act, we must carefully consider the definition of the term “killed in the line of duty” given to us in Section 281(e) of the Act which reads as follows:

“Section 281(e) 'killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause . .

Except for the words “or other accidental cause”, the meaning of the above section is perfectly clear. However, the ambiguous words must be considered in the light of the following rule stated in I.L.P. Statute §123:

“In construing a statute to ascertain the intention of the intention of the General Assembly, the statute should be construed as a whole or in its entirety, and the legislative intent gathered from the entire statute rather than from any one part thereof.
“All parts, provision, or sections of a statute must be read, considered, or construed together, in the light of the general purpose and object of the statute, so as to make it harmonious and consistent in all its parts and to give effect, if possible, to all such parts.”

Therefore, Section 282(e) must be construed in pari materia with §5 which notes that compensation under this Act is in addition to, and not exclusive of, any pension rights, death benefits or other compensation otherwise payable by law. In short, this Act creates a special statutory remedy in addition to any other remedy, either statutory or common-law, which the decedent’s heirs might have.

Hence we believe that, considering the general purpose of the special Act, the legislature did not intend to compensate the survivors of those officers and firemen whose deaths were not directly attributable to the risks inherent to their profession. It can be said, therefore, that where the heart-attack is the result of such a peril inherent to, and as the result of stress arising from the acts of law enforcement or firefighting, then the claim is compensable. If the heart-attack results from non-firefighting or non-law enforcement duties, or even from such duties which do not require some special stress or strain on the heart, then the officer was not “killed in the line of duty” within the meaning of the Act.

In summary, it is our opinion that the legislature intended to compensate the survivors of law enforcement officers and firemen who were exposed to risks greater than those to which the public is exposed. There is no rationale for compensating survivors of policemen or firemen who died as the result of mundane activities which did not involve special resk to their decedents’ persons.

This court finds that the decedent, Nick Georgean, was not a “law enforcement officer” within the meaning of this Act and therefore denies the claim presented herein.


text:
    (No. 00032
    Judy Lackey, as wife of Peter E. Lackey, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1973.

    Judy Lackey, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Per Curiam.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act”. The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Judy Lackey, is the wife of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, Peter E. Lackey, was a special agent investigator employed by the State of Illinois Bureau of Investigation engaged in the scope of duty on November 27, 1972, within the meaning of Section 282 of the aforecited act. On said date he suffered several stab wounds in his body and a slashing of his throat by a sharp instrument while enroute from his home to the Springfield office of the IBI, where he was to meet a fellow officer upon assignment to Quincy, Illinois. Agent Lackey died at approximately 7:30 a.m. on November 27, 1972, as a result of “Exsanguinating hemorrhage due to or as a consequence of severance of both superficial jugular veins, both common carotid arteries, left int. jugular due or as a consequence of slashing of throat by sharp instrument”. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause . .

A subsequent investigation by police led to the arrest of one Barron Dean Fonner who had been previously arrested by the decedent for narcotic violations. Fonner is presently incarcerated in the Sangamon County Jail awaiting trial.

IT IS HEREBY ORDERED that the sum of $10,000 (TEN THOUSAND DOLLARS) be, and the same hereby is, granted to Judy Lackey, as wife and next of kin of the decedent, Peter E. Lackey.


text:
    (No. 00033
    Rose F. Wenzel, as wife of Robert F. Wenzel, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1973.

    Rose F. Wenzel, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Per Curiam.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act”. The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Rose F. Wenzel, is the wife of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, Robert F. Wenzel, was a patrolman for the traffic division — Area No. 6, by the City of Chicago Police Department engaged in the scope of his duties on January 19, 1973, within the meaning of Section 282 of the aforecited act. On said date he was fatally shot three times after stopping a vehicle with two occupants, apparently for a traffic violation. Officer Wenzel’s death was clearly as a result of bullet wounds to the back, neck, and head. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282(e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause. . . ”

IT IS HEREBY ORDERED that the sum of $10,000 (TEN THOUSAND DOLLARS) be, and the same here is, granted to Rose F. Wenzel, as wife and next of kin of the decedent, Robert F. Wenzel.


text:
    (No. 00034
    Lucille Francis Zeiger, as wife of James Patrick Zeiger, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1973.

    Lucille Francis Zeiger, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Per Curiam.

This claim was filed pursuant to Ch. 48, Sec 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act”. The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Lucille Francis Zeiger, is the wife of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, James Patrick Zeiger, was a prison guard for the Department of Corrections, Illinois State Penitentiary, engaged in the scope of his duties on January 11, 1973, within the meaning of Section 282 of the aforesaid act. On said date he suffered stab wounds while allowing inmates “out on #8 gallery for reassignment.” His death was a result of seven stab wounds inflicted by the direct willful act of an inmate. After the stabbing, the inmate rolled or kicked the decedent causing his fall 35 to 40 feet from a tier, to the concrete floor. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause . . .”

IT IS HEREBY ORDERED that the sum of $10,000 (TEN THOUSAND DOLLARS) be, and the same hereby is, granted to Lucille Francis Zeiger, as wife and next of kin of the decedent, James Patrick Zeiger.


text:
    (No. 00009
    Lois Mae Berkshire, as wife of Larry Berkshire, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1973.

    Lois Mae Berkshire, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General and Vincent Biskupic, Special Assistant Attorney General, for Respondent.
   Per Curiam.

This claim was filed pursuant to Ch. 48, Sec. 281 et seq., Ill.Rev.Stat., 1971, “Law Enforcement Officers and Firemen Compensation Act”. The Court is in receipt of the Application for Benefits and Statement of Supervising Officer, as well as an investigative report by the Illinois Attorney General’s office. Based upon these documents the Court finds as follows:

That the claimant, Lois Mae Berkshire, is the wife of the decedent and is the named beneficiary under the Application for Benefits. That the decedent, Larry Berkshire, was a patrolman with the City of Litchfield Police Department, engaged in the scope of his duty on September 19, 1971, within the meaning of Section 282 of the aforecited act. On said date Patrolman Berkshire answered a call regarding a loose horse on N. Douglas Street. Berkshire mounted the horse to ride it to a ball field and fell off the horse hitting his head on the pavement. Berkshire died three days later, the death certificate reciting that the immediate cause of death was cerebral edema due to or as a consequence of cerebral contusion posterior, and contre coup lacerations of the brain anteriorly due to or as a consequence of a fall from a horse. The Court further finds that the Attorney General’s office in its investigation has determined that this claim is within the scope of the above cited statutes:

“Section 282 (e) ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause . . . .”

IT IS HEREBY ORDERED that the sum of $10,000.00 (TEN THOUSAND DOLLARS) be, and the same hereby is, granted to Lois Mae Berkshire, as wife and next of kin of the decedent, Larry Berkshire.


text:
    (No. 73-CC-130
    Memorial Hospital of Springfield, Illinois, An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed July 9, 1973.

    Brown, Hay & Stephens, Attorney for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-233
    Raymond W. Miles, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 9, 1973.

    Duhadway, Suddes & Davis, Attorney for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-283
    Paul D. Mc Curry, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed July 9, 1973.

    Paul D. Mc Curry, FAIA, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6404
    Xerox Corporation, Claimant vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 9, 1973.

    Xerox Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6803
    De Normandie Industrial Garmet Supply Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 9, 1973.

    De Normandie Industrial Garmet Supply Company, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6969
    Central Office Equipment Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 9, 1973.

    Central Office Equipment Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6971
    Central Office Equipment Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 9, 1973.

    Central Office Equipment Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6981
    Kankakee Industrial Supply Company, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 9, 1973.

      . Kankakee Industrial Supply Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7018
    Shelco Construction, Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 9, 1973.

    Shelco Construction, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Perlin, C. J.

text:
    (No. 7080
    Mindel, Eugene D., M.D., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed July 9, 1973.

    Eugene D. Mindel, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C. J.


text:
    (No. 73-CC-4
    Huston-Patterson Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 12, 1973.

    Huston-Patterson Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-34
    Velde Ford Sales, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 12, 1973.

    Velde Ford Sales, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-161
    Clifford L. Bishop, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 12, 1973.

    Clifford L. Bishop, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-214
    Atlantic Richfield, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed July 12, 1973.

    Atlantic Richfield, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-224
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 12, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-226
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 12, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-261
    Keith Jones, Member of Regional Board of School Trustees, Vermilion County, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed July 12, 1973.

    Keith Jones, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-309
    Morris P. Silver, D.P.M., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 12, 1973.

    Morris P. Silver, D.P.M., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-327
    William H. Kopp, Jr., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 12, 1973.

    Glaeser, Burstein & Gates, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-337
    Urban Technical Centers, Inc., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed July 12, 1973.

    Urban Technical Centers, Inc., Claimant, pro se.

      William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-348
    American Hospital Supply, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 12, 1973.

    American Hospital Supply, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-369
    Vredenburgh Lumber Company, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 12, 1973.

    Vredenburgh Lumber Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-388
    Stern’s Carriage House, Inc., Claimant, vs. State of Illinois, Economic and Fiscal Commission, Respondent.

      Opinion filed July 12, 1973.

    Routman and Lawley, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5998
    Wilma Walkowitz a/k/a Wilma Walkowicz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 12, 1973.

    John D. Dempsey and Rosemary Duschene, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant seeks recovery of $25,000 for injuries she sustained on November 7, 1969, when she caught her foot in a hole and fell while crossing Touhy Avenue in the Village of Skokie.

The parties have stipulated that the highway in question was under the auspices and control of the State of Illinois at the time and place of the occurrence.

Claimant was the only witness to testify in the proceedings. She stated that she crossed the street in question on her way to lunch at noon. She was crossing Touhy Avenue in an area generally used by the public as a crosswalk to cross from Teletype Corporation where claimant worked, to the restaurant. Claimant testified that she stepped in a hole in the street approximately six inches in diameter and four or five inches deep and fell forward on her knees, shoulder and head, sustaining a fracture of the left patella, bruises and contusions to her shoulder, head, and knee and back strain. Claimant introduced photographs over the objections of respondent, purporting to show the hole in question.

Claimant contends that there was no evidence of contributory negligence. It is difficult, however, to understand why claimant was unable to see and avoid the alleged defect. Claimant further contends that respondent did not introduce evidence to show that it conducted regular inspection of that area of the roadway "as ordinary care would require.” (City of Peru v. Frence, 55 Ill. 3, 7, etc.) Claimant further argues that the color of the sides of the hole, plus the smooth edges demonstrate that it had existed for a long time.

Respondent argues that in order for claimant to recover on the basis of an alleged defect, she must show that the State had either actual or constructive notice of the defect. (Weygandt v. State of Illinois, 22 C.C.R. 478) In denying recovery to the claimant who had injured himself in the case of Palmer v. State of Illinois, 25 C.C.R. 1, the Court stated:

"The mere fact that a defective condition existed, if, in fact, it did exist, is not in and by itself sufficient to constitute an act of negligence on the part of Respondent.”

In absence of any testimony or other witnesses which would establish the Respondent either knew or should have know of the existence of the hole, claimant has failed to show that Respondent was negligent and, therefore, recovery must be denied.


text:
    (No. 6327
    Moore Business Forms Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 12, 1973.

    Moore Business Forms Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-326
    Frank O. Carlson & Co., Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 13, 1973.

    Frank O. Carlson & Co., Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-371
    Ascot House, Claimant, vs. State of Illinois, Governor’s Office of Human Resources, Respondent.

      Opinion filed, July 13, 1973.

    Ascot House, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6496
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Various Agencies, Respondent.

      Opinion filed July 13, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-155
    Andrew J. Wiggins, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed July 16, 1973.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.

      William J. Scott, Attorney General; Saul R Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7095
    Richard N. Lyons, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed July 16, 1973.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-157
    Hurschel Sapp, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 19, 1973.

    Hurschel Sapp, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-158
    Edward R. Lane, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 19, 1973.

    Edward R. Lane, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-159
    Charles Ruffini, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 19, 1973.

    Charles Ruffini, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-160
    Billy D. Myers, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 19, 1973.

    Billy D. Myers, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-207
    Florence Crittenton Peoria Home, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed July 19, 1973.

    Florence Crittenton Peoria Home, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-221
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 19, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-227
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Business and Economic Development, Respondent.

      Opinion filed July 19, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-229
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed July 19, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-231
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed July 19, 1973.

    Atlantic Richfield Company, Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-245
    Phillips Petroleum Company, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 19, 1973.

    Phillips Petroleum Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-340
    Desaulniers and Company, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed July 19, 1973.

    Desaulniers and Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-359
    M. S. Ginn and Company, Claimant, vs. State of Illinois, Department of Business and Economic Development, Respondent.

      Opinion filed July 19, 1973.

    M. S. Ginn and Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-396
    Damarin, Kuhle, Suhre, Inc., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 19, 1973.

    Damarin, Kuhle, Suhre, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5547
    Holiday Inns of America, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 19, 1973.

    M. Hue Smith, III, Attorney for Claimant.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6669
    Ozark Air Lines, Inc., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed July 19, 1973.

    Ozark Air Lines, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6895
    Shoss Radiological Group, Inc., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed July 19, 1973.

    Shoss Radiological Group, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-17
    Orville St. Clavey, Sheriff of Lake County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 26, 1973.

    Orville St. P. Clavey, Sheriff of Lake County, Illinois, Claimant, pro se.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This court finds that this claim is for reimbursement of travel expenses incurred by the Claimant in connection with the return of prisoner Joseph Varanelli, Sr., from Phoenix, Arizona on May 31, 1972, and June 1, 1972, and the return of prisoner Leon Lloyd from Houston, Texas, on October 26 and 27,1971, authorized by the Department of Finance. The sole reason said claim was not previously paid is due to the lapse of the appropriation for the period during which the debt was incurred, the same having been confirmed by the written report of the Department of Finance, a copy of said report being attached to the Joint Stipulation of the parties.

There were not sufficient monies at the time the obligation was incurred from which this debt could have been paid, however, in Fergus vs. Brady, 277 111. 272, the Illinois Supreme Court ruled that express authority is implied by law to extend an agency’s appropriation where the following factors are present: a) no accurate advance estimate of expenses is possible, and b) there is a requirement by law to provide the services. Accordingly, the instant claim meets the criteria established in the Fergus case and the claim is a just one.

It is hereby ordered that the sum of $965.79 (nine hundred and sixty-five dollars and seventy-nine cents) be awarded to Claimant in full satisfaction and any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 73-CC-55
    Dictaphone Corporation, Claimant, vs. State of Illinois, Governor’s Office of Human Resources, Respondent.

      Opinion filed July 26, 1973.

    Dictaphone Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-178
    Walart Management Co., Claimant, vs. State of Illinois, Department of Personnel, Respondent.

      Opinion filed July 26, 1973.

    Foss, Schuman and Drake, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-284
    Frank Hubbard Electric Company, Inc., Claimant, vs. State of Illinois, State Fair Agency, Respondent.

      Opinion filed July 26, 1973.

    Frank Hubbard Electric Company, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.