text:
    (No. 4672
    David Cerar and Joseph Cerar, d/b/a Cerar Mink Ranch, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

      Petition of claimants for rehearing denied April 26, 1957.

    John W. Russell, Attorney for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimants, David Cerar and Joseph Cerar, d/b/a Cerar Mink Ranch, filed their claim against the State of Illinois for damages in the amount of $5,795.00.

They allege in their complaint the loss of 105 mink “kits”, approximately one week old, which were destroyed by a female mink on May 16, 1954, and charge that on said date at or about the hour of 1:15 P.M. members of the 170th Fighter Bomber Squadron, Illinois Air National Guard, flew F-51 Fighter planes, approximately five in number, at a low altitude within the vicinity of Carlinville, Macoupin County, Illinois.

The evidence shows that the mink ranch, which was operated by plaintiffs, was located one-half mile south of Carlinville, Macoupin County, Illinois, and the whelping season for the mink at the ranch had been within one week prior to said date. Furthermore, it pointed out that mink are highly nervous, and at whelping time if the mother mink becomes disturbed or excited she destroys her young by eating them, or killing them in other ways.

No answer having been filed to the complaint, a general traverse or denial is considered to have been filed.

The record consists of the following:

Complaint.
Transcript of evidence.
Departmental Report.
Various and sundry motions in regard to extensions of time for filing abstracts and briefs.
Abstract of evidence.
Statement, brief and argument of claimant.
Statement, brief and argument of respondent.
Reply brief.
Commissioner’s Report.

Claimants offered several witnesses, who testified in substance that on the day in question they heard the roaring of planes, and identified them as being of the fighter class. They stated the planes were flying low in the vicinity of the mink ranch, and that the roar from the planes created and caused vibrations on the ground, and attracted the attention of several people. In this regard, some of the people did not state the altitude at which the planes were flying, and others disagreed as to the altitude at which the planes were flying in the vicinity of the mink ranch. One of the claimants, David Cerar, his wife, and a Mr. and Mrs. John Hargis, who were at the mink ranch on the day in question buying mink feed from one of the claimants, all testified that they heard the roaring of the planes, felt the vibrations, and identified the planes as being F-51 Fighters, at a time when at least Mr. Cerar and Mr. Hargis were in a freezer, which was heavily insulated, selecting the feed being purchased by Mr. Hargis. They immediately ran out and noticed the F-51 planes, being aproximately five in number, which were following a tow plane to which a sleeve had been attached as a target for the other planes.

It was established by the Departmental Report, among other things, that Camera Gunnery Missions of the Squadron in question were normally performed in an area west of Mason City, Illinois, but, due to inclement weather in that area on May 6, 1954, an area south and west of Springfield, Illinois was used. In the mission a sleeve is towed by an aircraft as a target for the other planes. The aircraft fly in a circular motion diving toward the sleeve, and, when the triggers are tripped, the camera operates, and records the proficiency of the pilot. The tow aircraft is flown at 2000 feet mean sea level. Full power is used in the F-51 type aircraft, which is the accepted practice on such missions. These aircraft at maximum power create a roar, and establish a vibration.

The statements- of several pilots and other personnel, which were attached to the Departmental Report, gave the location of the mission as being as far south as Girard, Illinois, and expressed the belief that they were in the area of Carlinville.

David Cerar, his wife, and Mr. and Mrs. Hargis testified that, upon hearing the roar and noticing the planes, they saw the mother mink drag the baby mink “kits”, and saw other evidence of destruction of the mink “kits”.

David Cerar and one other witness testified on his behalf in arriving at the number of mink “kits” destroyed. David Cerar testified from his records as to the number of mink “kits” destroyed by mink, all of which is reflected by the Bill of Particulars, attached to the complaint and made a part thereof.

Respondent, under Point One of its brief, contends that, in the absence of knowledge of the location of the mink farm, there is no liability for damages for loss of young resulting from fright caused by low flying, citing the following cases:

Nova Mink, Ltd. vs. Trans-Canada Airlines, 1951 U.S. Av. R. 40.
Maitland vs. Twin City Av. Corp., 37 N.W. (2d) 74, 254 Wis. 541.

Claimants have cited the case of Thomas Lee Causby vs. United States of America. This is a decision of the United States Court of Claims, in which it was held that the operation of an airport by the United States Air Force constituted a taking of the property of the claimant, Causby, for which he was entitled to compensation.

We are here being called upon to decide whether respondent’s agents were negligent in the operation of the planes in causing a roar and vibration, which would frighten the mink, and cause them to destroy their young.

In this regard, we have to take into consideration: First, whether or not the agents could foresee the consequences of their acts in the flying of the aircraft during a gunnery mission, which would give rise to the claimants’ claim against respondent; Second, whether the pilots were flying in a restricted area or were confined to a particular area in carrying on a gunnery operation; and, Third, whether or not they were flying at the required altitudes set forth in the Bules and Begulations of the Civil Aeronautics Commission and the Department of the Air Force of the United States Government.

Section II of the Bules and Begulations of the Air Force of the United States, being General Flight Buies and Bequirements, appears as a part of the Departmental Beport, and reads as follows:

“12. Minimum Altitude of Flight. Except during take-off and landing, no aircraft will be flown:
a. Over a metropolitan area, town, congested area, or open air assembly of persons except at an altitude, which will permit an emergency landing outside of such areas in the event of mechanical malfunction. In no case will the altitude over such areas (except when necessary to execute established landing or take-off patterns) be less than 2,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft.
b. At an altitude of less than 500 feet above any building, house boat, vehicle, or other obstruction to flight.
c. At less than 500 feet above the ground or water elsewhere than as specified above, except that helicopters may be flown at less than 500 feet at places other than enumerated in a and b above.”

A description of a Camera Gunnery Exercise, prepared by Major Robert J. Spreit, is attached to the Departmental Report, wherein a complete explanation of gunnery missions of this kind is given. In his statement, Major Spreit admitted that he was flying the aircraft, which was towing the aerial target, and that there were three other F-51 aircraft in the flight making camera gunnery passes on the target he was towing. He reported he was towing the target at 2000 feet mean sea level, and that none of the aircraft went below this altitude during the Camera Gunnery Exercise. The aircraft do not fly below the target, but at all times, after firing the target, climb above it to make their getaway. He testified as to the area in which the mission was executed, and stated that at no time did he pull the target over a populated area.

There appears to be no question but what, even though the planes were flown at a recognized altitude, they would still create a roar and certain vibrations, which would certainly attract the attention of people. This would also be true of any aircraft, such as jet planes, which are becoming quite common, flying’ in formation or on a mission over populated areas, and undoubtedly over other mink ranches during the period of timé when the mink were whelping and undoubtedly would frighten them, which would cause them to destroy their young, as was testified to in this case.

In fact, there is testimony that strangers appearing at a mink ranch during a period of time when the mink are having their young, or any unusual noise made by a passerby, might cause the mink to become frightened and destroy their young. In these instances, we do not believe that the making of a noise without any knowledge or ability to see the consequences of same would create any liability against the individual. We do not see why the same reasoning could not be applied to the instant case. We believe that it would be placing respondent and also the United States Air Force under a responsibility, which would be unreasonable at a time when we are trying to maintain and strengthen the defenses of this country, in which it is recognized that the Air Force plays a very material part.

The cases cited by both claimants and respondent are ■certainly in conflict. We do believe that there is a lot to be said about the questions of knowledge, of foreseeability, and the consequences of acts of this nature before there can be any question of liability.

There is also a responsibility upon mink ranchers to so conduct and provide for mink during the time that they are whelping, so as to minimize their loss.

Under the circumstances, we do not feel it necessary to make a comparison, or to draw conclusions as to the discrepancy between the Departmental Report and the testimony of claimants’ witnesses as to the altitude maintained by the planes, and the distances the planes were from the mink ranch owned by the • claimants.

The record is silent as to any disciplinary action initiated against the pilots, who were flying under their Commanding Officer, for a violation of any rule or regulation of the Civil Aeronautics Commission or the Air Force of the United States Government. It is further recognized that the training and experience acquired through such missions is necessary, and, of course, at times could be frightening to animals. Certainly all these possibilities could not be a resulting consequence, and could not be chargeable to pilots flying on a gunnery mission or any other mission during flight training.

We, therefore, believe that this claim should not be allowed. To make any other decision would be a departure from the rules and principles, which we have formerly laid down in cases involving negligent or tortious acts.

Supplemental Opinion

The claim in the above entitled cause having been denied by this Court, claimants filed a petition for rehearing on February 6, 1957. Oral argument was had on March 22, 1957.

It has been alleged in the petition and argued, first, that this Court gave greater weight to the Departmental Report than to the testimony of eleven eye witnesses concerning the actions of the five planes of the 170th Bomber Squadron of the Illinois National Guard. In this regard, petitioners are of the opinion that, because the Departmental Report is not sworn to, and claimants did not have an opportunity to cross-examine the witnesses, this Court should not consider the matters set forth in the Departmental Report. In reply to this, we refer to Rule 16 of the Court of Claims.

In the second paragraph of the petition, claimants contend that it would be unreasonable and impossible for claimants to give notice to the Federal and State Governments, where air bases are maintained within flying distances of ranches, as to their location.

In reply to this, we held and are of the same opinion that, before there could be any liability established, and before we could allow a claim of this nature, claimants would have to prove by a preponderance or greater weight of the evidence that the consequences of the acts of the agents would have to be foreseeable. This, we believe the claimants have failed to establish.

The third point raised is that the Court overlooked the fact that, had the planes been flying in accordance with the Rules and Regulations of the Air Force of the United States, the loss of 105 mink kits would not have taken place; and the preponderance of the evidence was that the said planes were at a much lower altitude, and the question of foreseeability and the consequences of the acts must be based on the reasonableness rule (Citing the case of Skeets vs. U.S.A., 1947 U.S.A. Reports, 337.)

There was no evidence that, had the planes been flying at 2,000 feet or more, the noise and vibrations would not have still excited the mink resulting in the damages claimed. Furthermore, we are of the opinion that the planes were flying at more than the recognized height, which is 500 feet outside of city limits, and that we have adopted the reasonableness rule that the consequences of these acts would not be foreseeable by the pilots flying the planes in question.

The fourth paragraph of the petition calls attention to our misapprehension as to the findings in the Nova Mink Ltd. vs. Trans-Canadian Air Lines case, 1951 U.S. Av. R. 40; and the Maitland vs. Twin City Av. Corp., 37 N.W. (2d) 74, 254 Wisc. 541.

We have re-examined the record in this case, and find from the testimony of some of the witnesses that they were unable to state the height at which the planes were being flown. We are also of the opinion that the pilots in question did not fly their planes contrary to general safety rules and regulations.

If we had found that the pilots had exceeded their authority on this mission, and were acting outside of the scope of their authority in defiance of their rules and regulations, we would have also denied this claim.

As to paragraph five of the petition, we have taken into consideration all of the facts and circumstances in arriving at our decision, and are still of the opinion that this claim should be denied.


source: Caselaw Access Project

author: Tolson, C. J.

license: Public Domain

text:
    (No. 4681
    Joseph Pelc, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1957.

    Daniel W. Handlin, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On June 17, 1955, Joseph Pele filed a complaint in which he seeks damages for the wrongful removal of three signs installed by him along U.S. Route No. 66. The facts of the case are as follows:

Joseph Pele was engaged in the business of outdoor advertising, and had installed three signs along the right-of-way of U. S. Route No. 66 near Lincoln, Illinois. The signs did not mention his name, or disclose who owned the signs, as the only word appearing thereon was “Publicity”.

About ten years prior to December 29, 1954, the state had acquired additional right-of-way to enlarge U.S. Route No. 66. Since no immediate need was present, the state leased the land to adjoining land owners for agricultural purposes. Joseph Pele, in turn, leased part of the land from the lessees for the purpose of erecting outdoor signs.

On December 29, 1954, C. M. Wahl, District Engineer for the Division of Highways, sent letters to each of the advertisers, whose names appeared on the signs. He advised them that the state was about to use the right-of-way, and requested them to remove their signs within thirty days.

Joseph Pele did not receive such a notice, but he was advised by the owner of the Buckles Motel, one of his customers, that the motel received a notice to remove the signs. Claimant went to the highway, and attempted to remove the signs; but, due to the fact that the posts were frozen in the ground, he abandoned the job.

Sometime prior to the middle of March, employees of the state removed the signs. Some of the material was removed to the maintenance sheds of the state, and some was taken to the homes of the highway employees. Mr. Pele recovered part of the material. His claim in the amount of $475.00 represents that portion, which was destroyed, lost or converted by state employees, and the further sum of $57.50 for loss of revenue.

Respondent argues that the placing of signs on the right-of-way was illegal, and violated Chap. 121, Par. 160, 1955 Ill. Rev. Stats. Respondent also argues that the advertising signs, encroaching on the highway, were a purpresture, and were a nuisance per se, and could be summarily abated. People vs. Wolper, 350 Ill. 461.

In answer to these points, it is obvious that the State Highway Department was aware of these signs for at least two years, and, being so aware, could hardly suppress them without reasonable notice.

Claimant, however, was notified in ample time to remove these signs. The fact that the posts were frozen in the ground is little excuse to him for not removing the panels from the posts. It appears that the signs were made of masonite panels upon which a reflective material called “Scotchlite” was attached. These panels were the expensive part of the sign, as the posts were 4 x 4’s, which showed signs of decay.

Claimant argues in his brief that respondent is liable for the acts of its employees in converting to their own use a portion of the signs.

To justify a recovery against the Master, it must appear that the servant was acting within the scope of his employment in the furtherance of his Master’s business.

On page 45 of the transcript, Leslie E. Nichols, a Civil Engineer employed by the State of Illinois, was cross-examined by claimant’s attorney as follows:

“Q. Mr. Nichols, you were acting within the course of your duty in instructing these people to remove the signs, is that correct?
A. Yes, sir.
O. In the course of that authority that you had given them to remove the signs, that also included the authority to take and do with them as was done, is that correct? You have heard their testimony?
A. Yes, I have. I instructed them to take the signs down, and if anybody — any of the owners of the signs came by, that they could have them if they wished. And if anybody came by and asked them to stop that they would like to remove their own signs, they also could let them do that. But I told them to take the signs down, and take them to the storage yard, and further than that I gave them no instructions.
Q. You had given them authority to take them down and to,remove them?
A. That is right.”

This testimony establishes conclusively that any act of conversion was clearly beyond the scope of their employment, for which respondent would not be liable.

The Court, therefore, finds that claimant had actual notice that the state was about to use the right-of-way. The Court further finds that claimant had the opportunity to remove the signs, or at least the panels from the signs, but did not avail himself of such opportunity. The Court, therefore, concludes that claimant’s own neglect precludes him from an award.

An award is, therefore, denied.


text:
    (No. 4704
    Blauner Construction Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1957.

    Walter T. Day, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Despondent.
   Tolson, C. J.

On January 16, 1956, claimant, Blauner Construction Company, A Corporation, filed its complaint, seeking an award in the amount of $58,404.49 for balance claimed to be due on a certain contract.

The record consists of the following:

1. Complaint.
2. Departmental Report.
3. Supplemental Departmental Report.
4. Motion for summary judgment.
5. Stipulation.
6. Amendment to complaint.

The facts of the case are as follows:

On April 30, 1952, claimant and respondent entered into a contract/ in the amount of $245,600.00 for the construction of a certain building at Sheridan, Illinois. A copy of the contract, identified as No. 67370, as well as the plans and specifications, were attached to and made a part of the complaint.

Certain difficulties were encountered, which were not covered in the contract, and certain extras were ordered to complete the job.

The state withheld the sum of $20,000.00 from the final payment, and, thereafter, Edward Pratt’s Sons Company, a subcontractor, filed a notice of lien with the state for labor and material.

The Departmental Report from the Division of Architecture and Engineering, dated February 21, 1956, admits that certain extra work was ordered but differs with claimant as to the value of the work. The Report also denies any liability for hardships encountered in performing the contract.

Since the filing of the complaint on January 16,1956, claimant has settled the lien claim of Edward Pratt’s Sons Company for the sum of $8,900.00, leaving a balance of $11,100.00 in the fund withheld. There is no dispute as to the merits of this portion of the claim.

On March 5, 1957, the Division of Architecture and Engineering filed a Supplemental Report, in which it was indicated that the charges for the extra work had been reviewed, and the Department recommended payment to claimant in an amount not to exceed $16,000.00.

On March 22, 1957, claimant filed an amendment to the complaint, and a motion for summary judgment. On the same date, claimant and respondent filed a stipulation, in which it was recited that there is presently withheld from claimant the sum of $11,100.00.

The stipulation further recites:

“It is further stipulated and agreed that work in addition to that required by the claimant’s contract, contract No. 67370, was ordered by respondent and performed by claimant, and that liability for such work has never been denied by respondent, but that before and since the filing of the present cause of action the claimant and its attorneys have been in conference with various supervising architects of the State of Illinois, with the Assistant Chief of Construction, Division of Architecture and Engineering, the Director of the Department of Public Works and Buildings and the Director of the Department of Public Welfare, same being the Department for which such building was constructed, and that as a result of such conferences the respondent has conducted independent investigations concerning the items set forth in the original Bill of Particulars, and have by such investigations arrived at measurements, cubic yards, reasonable costs and labor rates pertaining to each of the items set forth in such Bill of Particulars, and have, in addition thereto, interpreted, construed, admitted and disclaimed various items of the former Bill of Particulars resulting in a communication, dated March 5, 1957, from the Supervising Architect of the State of Illinois to the Attorney General of the State of Illinois, indicating that Item 1, Sections A and B; Item 2, Sections A, B and C; and Item 4, as contained in the original Bill of Particulars, are concurred in and admitted by the State of Illinois, and that the total amount approved by respondent for the work done, in addition to that required by the contract, is in the sum of sixteen thousand and twenty-five dollars and fifty-four cents ($16,025.54), and that such sum is a fair, usual, reasonable and customary amount allowable for said items.”

From a review of the pleadings, Reports and stipulation, it would appear that claimant is entitled to an award, and that it is not necessary to refer the matter to a Commissioner to hear evidence and report findings.

Since this Court is not permitted to enter a judgment against the State of Illinois, the motion for summary judgment will be treated as a motion in the nature of a motion for summary judgment.

An award is, therefore, made to claimant, Blauner Construction Company, in the amount of $11,100.00, the same being the balance due it from funds withheld on contract No. 67370.

An additional award is made to claimant, Blauner Construction Company, in the amount of $16,025.54, which was the amount found by the stipulation to be due claimant for extra work ordered by the State of Illinois.


author: Fearer, J.

text:
    (No. 4734
    Stanley Brook and Norman Rubin, d/b/a Abbot Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1957.

    Irving S. Berman and Seymour I. Regal, Attorneys for Claimants.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Fearer, J.

The complaint in this case was predicated upon a written contract No. 67976, dated June 11, 1953, with respondent for certain repairs and alterations to the State of Illinois Armory Buildings at Delavan, Decatur and Peoria, Illinois. The total contract for labor and material was $16,558.00. There was paid thereon $13,511.80, leaving a balance unpaid of $3,036.20.

A stipulation was entered into by the parties, wherein briefs and arguments were waived, and an order has been entered by this Court allowing the waiver of briefs and arguments.

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

The record consists of the complaint and Departmental Reports.

The evidence was heard by Commissioner Immenhausen, and it was found by him that an award in the amount of $3,036.20 should be made. This is a case where funds were appropriated to do the work called for by the contract, and were available at the time the contract was entered into. Subsequent thereto, the appropriation lapsed before final payment had been made.

From an examination of the testimony and exhibits, including the Departmental Reports, there is no question but that the work was satisfactorily performed, inspected and approved, that the charges made were' fair and reasonable, and that claimants had no alternative but to file the complaint to recover the balance due because of the lapse of the appropriation.

In previous opinions we have discussed similar situations, and have made awards where work had been satisfactorily performed in accordance with contracts entered into with the State of Illinois, and all that remained was the payment of the balance due under contracts of this nature.

It is, therefore, the order of this Court that an award he made to claimants for the unpaid balance in the sum of $3,036.20.


text:
    (No. 4759
    Joseph O. Engebretson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1957.

    Alex J. Victor, and Collis M. Hennelly, Attorneys for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On February 1, 1957, claimant filed his complaint seeking payment for damages caused by the barricading of U.S. Route No. 51 in Rockford, Illinois.

On February 21, 1957, respondent filed a motion to strike the complaint for legal insufficiencies. On March 4, 1957, claimant filed objections to the motion to strike, and this case is now before the Court on pleadings.

The gist of the complaint is as follows:

Claimant was the proprietor of a drive-in restaurant near the intersection of Spring Creek Road and North Second Street in the City of Rockford, Illinois. The sum of $200.00 per month was paid by claimant for the rental of the premises.

Respondent constructed an overpass and clover leaf at the intersection, and, in so doing, barricaded U. S. Route No. 51, which was the only access to claimant’s property. The work started on April 16, 1956, and was completed on September 11, 1956. Mr. M. M. Memler, an agent for the state, stated that the barricade would only last for a day or two, and for that reason claimant did not immediately move.

Claimant contends he lost $25,000.00 in profits., which he would have otherwise earned had he been allowed use of said premises during the period the road was closed. In addition, claimant states he became obligated to satisfy certain expenditures including $200.00 per month rent, and $525.00 per month for depreciation and real estate taxes on said property.

Claimant was compelled to close the business and move to a different location, and contends that the period that the road was closed was unreasonable and excessive. (Underline ours).

Respondent cites several cases in support of its motion to strike, two of which appear to be controlling.

In Grothe vs. State, 10 C.C.R. 49, claimant operated a filling station on U.S. Route No. 45 in Tolono, Illinois. Respondent barricaded the highway 300 feet north, and 1000 feet south of claimant’s place of business, and rerouted the traffic. This condition existed from March 1, 1936 to November 1, 1936, eight months in all. Respondent moved to strike the complaint.

The Court at page 50 stated:

“The question here involved has been considered by this Court in a number of cases. In the cases of Grassle vs. State, 8 C.C.R. 151, we held that: ‘Inconvenience, expense, or loss of business, necessarily occasioned to the owners of abutting property during the progress of the work by the construction of a public improvement, do not constitute damage to property not taken within the meaning of the Constitution, but merely a burden incidentally imposed upon private property adjacent to a public work, and without which such improvements can seldom be made, and, therefore, give no cause of action against a municipality therefor.’ ”

In Edward vs. State, 10 C.C.R. 671, claimant owned property on North Clark Street in the City of Chicago. On October 1, 1934, the state removed a portion of the pavement and sidewalk in front of claimant’s building. The repairs were not completed until early in 1935. Claimant alleged that, by reason of the delay, she was obliged to decrease her rentals, and thereby suffered a loss in the amount of $12,000.00. Respondent moved to strike the complaint.

The Court at page 673 stated:

“In the case of Chicago Flour Company vs. City of Chicago, 243 Ill. 268, plaintiff sued the city to' recover damages, which it sustained as the result of being deprived of the use of a certain switch track during a construction period. The Supreme Court in considering the matter said:
‘The only invasion of their rights complained of is the temporary interference with the ordinary means of access to and egress from, their property during the progress of the work. It is well settled that inconvenience, expense or loss of busines occasioned to abutting owners by the temporary obstruction of a public street, and the consequent interference with their right of access to their property, made necessary by the construction of a public improvement, gives no cause of action against'the municipality. The Constitution provides no remedy for the property owner under such circumstances. Such claim is not damage to property not taken, within the meaning of the Constitution.
Lefkovitz vs. City of Chicago, 238 Ill. 23.
Osgood vs. City of Chicago, 154 id. 194.
Northern Transportation Co. vs. City of Chicago, 99 U.S. 835.
Lord vs. City of Chicago, 274 Ill. 313.’ ”

From the foregoing cases, it appears that the complaint does not state a cause of action. The motion of respondent is hereby allowed, and the claim dismissed.


text:
    (No. 4625
    Divane Bros. Electric Co., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1957.

    Fleck and Pollack, Attorneys for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Divane Bros. Electric Company, A Corporation, filed its complaint on May 20, 1954, in which it seeks payment for certain work performed at the Illinois State Penitentiary, Pontiac, Illinois.

The record consists of the following:

1. Complaint.
2. Departmental Report.
3. Motion to strike and dismiss claimant’s complaint in part.
4. Order dismissing motion, to strike, but without prejudice to raise such objections at the hearing of said cause.
5. Transcript of evidence.
6. Exhibits.
7. Stipulation waiving briefs and arguments.
8. Commissioner’s Report.

The facts of the case are as follows:

On February 21, 1950, claimant entered into a contract with the State of Illinois for certain electrical work at the Pontiac Penitentiary under contract No. 66282, and, thereafter, on March 27, 1950, entered into a separate contract for other electrical work at the Pontiac Penitentiary under contract No. 66308.

The complaint is in Two Counts. Count One refers to contract No. 66282, wherein claimant alleges a balance due it in the amount of $22,334.98. Respondent’s motion to strike in part alleges that the sum of $15,699.22 is not a proper claim, and the amount asked should be reduced accordingly.

Under Count Two of the complaint, claimant alleges that there is a balance in the amount of $6,908.39 due under contract No. 66308, and respondent’s motion to strike alleges that the sum of $6,261.20 should be stricken from this claim.

The matter was referred to Commissioner Herbert G-. Immenhausen, who filed a detailed report in said cause.

At the meeting of the Court of Claims in April, the Commissioner and the Assistant Attorney General for the State of Illinois, who tried the case, advised the Court that claimant had proven its case by a preponderance of the evidence, and that the objections of respondent, heretofore filed, were not well taken, and would not be urged, as provided for in the order dismissing the motion to strike the complaint in part. It is to be further noted that respondent did not offer any testimony at the hearing, but merely submitted a Departmental Report.

The Commissioner’s report carefully analyzed all exhibits and testimony offered in evidence, and the Commissioner’s report in the following words and figures is, therefore, adopted by the Court. It reads as follows:

“Commissioner’s Report
Divane Bros. Electric Company, A Corporation, by Fleck and Pollack, its attorneys, filed a complaint with the Court of Claims on May 26, 1954.
Claimant alleges that on or about February 21, 1950, it entered into a written contract with the State of Illinois, acting by and through the Department of Public Works and Buildings, for electrical wiring of the new power plant at the Illinois State Penitentiary, Pontiac Branch, Pontiac, Illinois, contract No. 66282. Copy attached to the complaint.
Subsequent to the awarding of the contract, and after that work was commenced, additional and extra work was ordered by and through the Department of Public Works and Buildings, which work was not included in the original contract, and, which it was agreed between the parties should be paid for in addition to matters set forth in the original contract.
On September 30, 1952, claimant forwarded to respondent, through the Department of Public Works and Buildings, 24 proposals for acceptance, which itemized the extra work, and totalled $10,831.98.
On December 15, 1952, respondent recommended that claimant be paid for, in addition to the amounts in the contract, the following work under proposals, 1, 3, 4, 5, 6, 10, 12, 13, 15, 14, 20, 16, 21, 23 and 24, a total amount of $8,380.45; and respondent did on December 15, 1952 request of M. F. Seyfrit, Director of the Department of Public Safety, a requisition to cover the said amount and authority to accept the proposals as an addition to contract No. 66282.
The contract was figured, and the amount to be charged thereunder was computed upon the anticipation that the time for the completion of the contract and work done thereunder would be 180 days, which was the time specified by the General Contractor for completion of the entire building, but that, due to delays and circumstances entirely out of *he control of claimant, the work on the wiring project could not be started for a period of 90 days after the awarding of the contract. Respondent ordered the electrical switchboard directly from the manufacturer, and the delivery of said switchboard, upon which much of the work of claimant depended, was delayed, because of changes made in the layout by respondent as late as May 25, 1951, or a period of 15 months after the work on this project was started by claimant. Although the switchboard had been scheduled for delivery on October 1, 1951, it was not actually delivered until March 25, 1952.
Because of the delays, as set forth above, claimant was subjected to extensive labor and material increases, lost time, and necessarily was subjected to much supervision and overhead expense for the extended period. Claimant did on May 22, 1952, before the completion of its work under contract No. 66282, notify respondent of the following additional costs to claimant as a result of the delays:
Labor increases and insurance_________________________________$ 4,092.00
Material increases ______________________________________________________ 1,265.00
Lost time — 832 hours__________________________________________ 2,496.00
Supervision — 12 months____________________________________________ 1,200.00
Gen’l. Supt’s. time — 25 trips____________________________________ 1,250.00
Overhead expense for extended period________________ 1,200.00
$11,503.00
Claimant discussed the matter of payment of its claim with respondent, through the Division of Architecture and Engineering, on March 17, 1953, and at various other times, but no definite action was ever taken regarding the same.
The following is an accurate account of the amount due to claimant, and moneys paid by respondent, and the balance remaining unpaid on account of work done in connection with the State of Illinois Penitentiary, Pontiac Branch, Pontiac, Illinois, power house electrical wiring:
As per contract No. 66282 made and entered into on February 21, 1950 _________________________________________________________________________$ 41,830.00
Additional work performed pursuant to the request of respondent, as set forth in 24 proposals to respondent._________________________$ 10,831.98
Cost of delays_________________________________________________________________________________$ 11,503.00
$ 64,164.98
Credit allowed respondent by claimant on account of elimination of lightning protection______________________________________________________________$ 5,000.00
Total amount due claimant______________________________________________________$ 59,164.98
Respondent paid to claimant to September 24, 1953 on account thereof_________________________________________________________________________$ 35,400.75
Balance due September 24, 1953___________________________________________________$ 23,764.23
On September 24, 1953, claimant received a check in the sum of $1,429.25 from respondent, which claimant has not cashed, because of the dispute concerning the amount due, but which check claimant still has in its possession, but claimed the balance due should be $22,334.98.
In Count Two of said complaint, claimant entered into a written contract with respondent, State of Illinois, ■ acting by and through the Department of Public Work and Buildings, on March 27, 1950 for electrical work — alterations to the inmates kitchen (north cell house), Illinois State Penitentiary, Pontiac Branch, Pontiac, Illinois, as set forth in said contract No. 66308.
Subsequent to the awarding of said contract, respondent ordered certain extras over and above the work provided for in the original contract. One of the extras so ordered was in the sum of $3,913.00, about which no dispute existed, and which was paid by respondent. Certain other additional and extra work was made necessary by using dropped ceilings not originally planned, and this required extending 36 ceiling outlets, 6 junction boxes, and approximately 22 L.B. unilets around beams, as follows:
Material — 64 units @ $1.00 ea____________________________________________________$ 64.00
Labor — 64 units (lki hours ea.) — 96 hrs. @ $3.20 per hr_____________ 307.20
Insurance on labor.___________________________________________________________________________ 30.72
$ 401.92
Supervision — 4 hrs. @ $4.50_________________________________________________ 18.00
419.92
Overhead — 15% _________________________________________________________________________________ 62.99
$ 482.91
Profit — 10% ____________________________________________________________________________ 48.29
$ 531.20
Contract No. 66308 was figured, and the amount to be charged thereunder was computed on the agreement that the work could be commenced immediately and completed within a reasonable time, as was specified in the plans of the General Contractor, but, due to the delays and circumstances entirely out of the control of claimant, the work on the alterations to the inmates kitchen (north cell house), Illinois State Penitentiary, Pontiac, Illinois, could not be started until February 14, 1951, approximately one year after March 27, 1950, when the contract was awarded. This delay was occasioned by the refusal of respondent to permit the General Contractor to proceed with his work, because of the fact that some equipment had to be removed from the premises, andj other work was to be done by institution labor, although during the period of delay claimant necessarily had supervision on the premises and bi-monthly supervision from its main office. Before commencing on the work under the said contract, claimant notified respondent, through the Department of Public Works and Buildings, on February 14, 1951, that, because of the delay of one year in commencing its work, it would expect to be reimbursed for cost of increases in material and labor, and for cost of supervision.
Completion of the work under said contract by claimant was further delayed by respondent, because of changes made by respondent in its layout of a certain switchgear ordered by respondent directly from the manufacturer, which switchgear was essential to the completion of claimant’s work on the project, and, which, although it had been promised for delivery on October 1, 1951, was not delivered until March 25, 1952. The additional cost of claimant for overhead expense, lost time due to building not being ready for claimant’s installation, as above set forth, is as follows:
Labor increases and insurance______________________________________________________$1,870.00
Material increases_________________________________________________________________________ 600.00
Lost time — 624 hours___________________________________________________________________ 1,872.00
■ Supervision ------------------------------------------------------------------------------------ 450.00
Overhead expenses for extended period_______________________________________ 900.00
$5,692.00
Because of the delay in delivery of the switchgear equipment, it was necessary for claimant to install temporary alternating current service for a portion of the building equipment from stand-by service in the power house, and the cost of this was $38.00.
Claimant notified respondent of its claim on various occasions in writing, and discussed the claim with respondent, through the Department of Public Works and Buildings, Division of Architecture and Engineering, on March 17, 1953 and June 1, 1953, but no definite action was taken.
The following is an accurate account of the amounts due to claimant and moneys paid out by respondent, and the balance remaining unpaid on account of work done in connection with inmates kitchen, (north cell house), Illinois State Penitentiary, Pontiac Branch, Pontiac, Illinois:
As per contract No. 66308 made and entered into March 27, 1950 _____________________________________________________________________$ 18,680.00
Extras ordered about which no dispute exist_____________________$ 3,913.00
Additional work made necessary by lowering of ceilings_____________ 531.20
Temporary A. C. Service________________________________________________________ 38.00
Cost of delays______________________________________________________________________ 5,692.00
Total amount due claimant________________________________________________________$ 28,854.20
Respondent paid to claimant to October 8, 1953 on account thereof__________________________________________________________________ 21,945.81
Balance due claimant on October 8, 1953_____________________________$ 6,908.39
Respondent, State of Illinois, did not file an answer to the above complaint. On January 31, 1956, respondent filed a motion to strike and dismiss the complaint in part. On January 31, 1956, claimant filed objections to the motion of respondent to strike and dismiss. On February 28, 1956, Chief Justice Joseph J. Tolson entered an order denying the motion to strike the complaint in part, but without prejudice to raise all such objections at the hearing of said cause. No such motion was made at the hearing, and respondent did not file an answer, so that a general traverse or denial of the facts set forth in the complaint results.
The trial was commenced on February 28, 1957 by your Commissioner in Room 827, 160 N. LaSalle Street, Chicago, Illinois. Respondent filed a Departmental Report on Counts One and Two as repondent’s exhibit No. 1. Tire Departmental Report was made a part of the record, and was filed with the Court of Claims on April 17, 1957.
It was stipulated by and between counsel for claimant and the State of Uinois that the state entered into contract No. 66282 on February 21, 1950 covering certain electrical work to be performed at the Pontiac Prison for the agreed amount of $41,830.00, and another contract No. 66308 on March 27, 1950 for electrical work and alterations in inmates kitchen of the Pontiac Prison for the agreed amount of $18,680.00. The contract or specifications do not call for a completion date, but the project dragged along from the award of the contract in February of 1950 until June of 1952, due to no fault of complainant. The delay of two years and three months was caused by the uncompleted work of the General Contractor, and failure by respondent to furnish and deliver the switchgear until March 10, 1952.
To substantiate its claim, claimant produced four witnesses, and called J. N. Gaunt, Chief of Construction of the State of Illinois, Department of Public Works and Buildings, Division of Architecture and Engineering, during the period of 1950, 1951 and 1952, the' period during which work pursuant to the contract was being done, as an adverse witness.
Claimant’s witnesses were William Divane, present President of Divane Bros. Electric Co., A Corporation, and the Secretary of said Corporation at the time the work was being done under the contract. The said witness testified that he was familiar with the contract, the contemplated completion time, the work done under the contract, the extras which were ordered, and conferences which were held on the said extras, the delays, the reason for the delays, and the increases in cost due to wage increases, and increases in costs of material during the delay period. There was testimony from this witness, which substantiated the complaint. Claimant also produced one Rose Smith, one Chester Pazdziaro and one Jerome Buklas. Rose Smith is the bookkeeper for claimant, and she identified cost sheets, books and records of the company kept under her supervision, which books and records were introduced into evidence. In the books and records were payroll sheets showing wage increases, which were paid from time to time during the completion of the contract, and also records as to material purchased. Chester Pazdziaro, one of the witnesses, who no longer is employed by claimant, but was employed during a portion of the period in question, testified that he was a cost clerk and identified the books and records of claimant, which were later introduced as evidence. Jerome Buklas, another witness, testified that he is a buyer and expediter for claimant, and was a cost and pricing clerk during the period in question. He also identified books and records of the company, which were later introduced and put into evidence. The testimony of claimant’s witnesses substantiated claimant's claim. The testimony of J. N. Gaunt, called as an adverse witness by claimant, was that during the years 1950, 1951, and 1952 he was a field supervisor of building construction of 67 counties in the State of Illinois. As a part of his job he visited various places where construction was in progress, and made supervisory trips in that capacity to the State Penitentiary in Pontiac, Illinois, which was the subject of the architectural work under the contracts in question; that the General Contractor was the R. V. Monahan Construction Company; and that, while he did not have the contract before him, the contemplated completion time, in his imagination, would be six months; that there was a specification plan for the inmates kitchen prepared by his office; that in that plan was a section relating to delays called the proposal sheet with the estimated completion time of contracts entered into pursuant to specifications; that the general construction would be dependent upon the completion of the general or written contract, and that 95% of all state contracts are completed within 30 days prior to the estimated completion date, and a maximum of 30 days after the completion date is specified; that the contractor or sub-contractor before he could action a delay must receive approval from the state or the architect; that it was not possible for claimant to install the wiring in the new power house before it was completed, nor was it possible for claimant to complete its work before the installation of the switchgear. ‘The switchgear’, which he stated, ‘is an intrical part, the same as a light switch would be in residential construction. The switchgear is the control cabinet. Without that, you cannot connect the wiring to or from the gear.’ The switchgear was delivered in 1952; and the state bought it on a separate contract from the Roller Smith Company. It was delivered in the first quarter of 1952, approximately two years after the awarding of the original contract to claimant; that when the switchgear was actually delivered it had an additional panel for future service added to it for installation, which additional panel was not a part of the original contract; the reason for the delay in getting the switchgear was not known to him, other than the inability of the manufacturer to manufacture and supply it due to steel shortages, material shortages and so forth; that there were no references in the specifications to cause claimant to anticipate delay when the contracts were entered into, because bids for the switchgear were taken on the same date as bids on the electrical work, and were taken on the assumption that the state could get delivery of the switchgear at the proper time to complete the project. Further delay was occasioned by the delay in filling in grade elevations with the excavations for the tunnel, a portion of which was being dug by prison labor, and that claimant could not start on its work until the filling had been completed; that to his knowledge claimant was equipped to proceed with this work immediately after receiving the direction from the state, because they had not asked for an extension of time, and that there was nothing, which would have prevented claimant from completing this contract within the normal completion time of 180 days. In his capacity as supervisor of construction, he had seen extras or extra work done other than the original work called for in the contract; that the normal procedure for ordering extras is by letter, a direct authorization by letter from the supervising architect, and that this is altered quite often by field conditions. Where it is necessary to complete the project or a section of the project, and decisions have to be made in the field immediately, in. the particular contract there was an associate architect, and that there are employees other than those of his department, who made plans and specifications; that decisions were made in conference with the management of the institution, and that the paper work followed; that it takes from 30 to 45 days for the paper work to come through, and it is sometimes 45 days before the contractor gets an order to proceed, and the work is already completed; that this procedure was adopted for expedition and economical construction of necessity; that it would cost the state a lot more money, and the state would not be able to complete the projects with the expediency that is desired, and in most cases necessary, if work were not allowed to proceed until an authorization had been delivered. It would be impossible to complete the project, if you had to stop and wait for authorization; that Mr. Walter Wehrwein was in charge of construction at Pontiac, and had authority to order extras; that he was present at a conference between Mr. Wehrwein and Mr. Divane at which extras were discussed; that Mr. Wehrwein called him with reference to installation of motors; that the department’s electrical engineer was on the job; a representative of the Associate Architects and a representative of the institution were in conference, and it was necessary to make some immediate changes to be able to house some of the prisoners during the course of construction; that he was. not able to do so, so he ordered claimant to proceed, but one of four or five people could have so advised him, and it was with the knowledge of Mr. Wehrwein that the 25 proposals for extras, as revised, were recommended or agreed to by Mr. Gaunt’s department with the exception of one, which was recommended by bid by someone else, so that for that proposal claimant is making no claim in this case, and that the full amount of the extras as recommended or agreed to by Mr. Gaunt’s department was $10,831.98.
Mr. Gaunt further testified that the supervisory work and the portion of the claim by claimant before the actual completion of the contract was authorized by the state for reasons of economy. The maintenance consists of a control of voltage in turning off and on the power at certain intervals of the day, which was done manually before the installation of time clocks and regulatory equipment, and, if claimant had not agreed to do this work at the price claimed, it would have been necessary for the state to hear their proposal, and to put them; on a 24 hour operation basis every day, and that for reasons of economy, while employees of claimant were on the job. it would use men interchangeably at maintenance and equipment, who were paid at the rate of 2 hours a day; and that, while the witness was actually not at the conference when this was authorized, he stated he would see that claimant was contracted to do the work by someone with ample authority.
It took claimant two years or longer to do the work in the contracts in question, and he was aware of the long lapse between the awarding of the contract and the completion of the work, because he was the one who was trying to get delivery of the switchgear, and that he also would say without reservation that union wages between 1950 and 1952 were raised on 3 or 4 different occasions, and that the cost of material and equipment also increased generally during that time.
After careful consideration of all of the evidence, and having had an opportunity to observe the witnesses on the stand,- their demeanor while on the Witness stand, and having examined all the exhibits, it is my opinion that claimant has proved its case by a preponderance of the evidence, and that there is due and owing to claimant in Count One, the sum of $23,764.23, provided that the check in the sum of $1,429.25, which claimant did receive from the State of Illinois and still has in its possession, is returned; and, there 'is due and owing to claimant on Count Two of said complaint the sum of $6,908.39, making a grand total of the sum of $30,672.62. I, therefore, recommend that the claim be allowed in the sum of $30,672.62.
Respectfully submitted,
Herbert G. Immenhausen,
Commissioner."

An award is, therefore, made to claimant in the amount of $30,672.62.


text:
    (No. 4673
    Hyre Electric Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1957.

    Scolnik and Lafferty, Attorneys for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On April 4, 1955, Hyre Electric Company, A Corporation, filed its complaint seeking payment for work performed at the Illinois State Penitentiary at Pontiac, Illinois.

The record consist of the complaint, additional complaint, Departmental Report, stipulation and order waiving brief, transcript of evidence and exhibits.

The facts of the case are as follows:

In 1947, plans were developed to change over the electrical system at the Pontiac Penitentiary from direct current to alternating current. This conversion necessitated a complete change over of all motors and other electrical equipment. Hyre Electric Company was awarded the job under two contracts identified as Nos. 66281 and 66283. In March of 1950, claimant purchased the necessary equipment and- supplies, moved onto the site, and agreed to complete the job in 180 days.

Respondent stopped the job, and completely revised the plans. Thereafter a contract was let for the construction of a tunnel, and claimant was unable to proceed with its work until the tunnel was finished. The new plans called for extra work not contemplated in the original bid, and, of much more significance, labor and material costs had increased at a very substantial rate.

The Departmental Report acknowledges the responsibility of the state for the delay, and further that all extra work was ordered and accepted, and that claimant was entitled to payment therefor.

At the hearing, hundreds of exhibits were introduced in evidence to support the veracity of the claim, and the Attorney General not only did not offer evidence to the contrary, but advised the Court that there was no meritorious defense.

On May 10, 1957, Commissioner Herbert G. Tmmenhausen filed his report finding all issues in favor of claimant. His report in the following words and figures is hereby adopted by the Court:

“Commissioner’s Report
Hyre Electric Company, An Illinois Corporation, by its attorneys, Berger and Newmark, filed its claim against the State of Illinois on April 4, 1955. On June 6, 1956, they filed an additional claim, described as Count Two, which was allowed by order of the Court. On February 21, 1957, Berger and Newmark withdrew as attorneys for claimant, and Scolnik and Lafferty were substituted with the consent of the Vice-President of Hyre Electric Company, H. M. Cavanaugh.
Claimant alleges that its claim arises upon the contracts between it and the State of Illinois to furnish all labor and material to fully complete all the work for an electrical distribution system at the Illinois State Penitentiary, Pontiac Branch, Pontiac, Illinois. The contracts are known as Nos. 66281 and 66283, and were entered into on February 21, 1950.
Claimant also makes a claim for extra work, and the cost of delays at the instance and request of the State of Illinois. Claimant also makes the claim that it was prevented from beginning its work on schedule, because other and different work was done, for which it was not responsible.
The subject matter of the claims under the original complaint and Count Two was presented to the Division of Architecture and Engineering, Department of Public Works and Buildings, State of Illinois, J. N. Gaunt, Chief of Construction, on or about February 10, 1954. Claimant was advised that the funds appropriated to cover the cost for this project were not re-appropriated, and that these funds lapsed on September 30, 1953.
Demand for payment was made, and claimant was informed that there was no other recourse except to file suit in the Court of Claims. Claimant is the sole owner of these claims, and there is no assignment or transfer of the claims, or any part thereof.
Under contract No. 66281 claimant was to furnish all labor and material to fully complete all the work for an electrical disribution system for the Illinois State Penitentiary, Pontiac Branch, Pontiac, Illinois.
Contract No. 66283 called for claimant to fully complete all the work called for in Proposal No. 1 for complete electrical conversion from direct to alternating current, and electrical wiring for power and light at the Illinois State Penitentiary, Pontiac Branch, Pontiac, Illinois.
Claimant called as an adverse witness for cross-examination under the appropriate section of the Civil Practice Act, J. N. Gaunt, Chief of Construction of the Division of Architecture and Engineering, Department of Public Works and Buildings, State of Illinois. In addition to testifying under cross-examination as an adverse: witness, the said J. N. Gaunt produced the files of the Department of Public Works and Buildings affecting the contracts described above and the work covered by correspondence, memoranda and reports of inspection and field conditions as they arose in the progress of the work. There is also on file in this case, duly filed with the Clerk of the Court of Claims on March 4, 1957, a communication from the supervising architect to the Hon. Latham Castle, Attorney General of the State of Illinois, Subject: Departmental Report, Hyre Electric Company, An Illinois Corporation vs. State of Illinois, Court of Claims, No. 4673, from which your Commissioner quotes as follows:
'Count One.
Paragraph 1 — This contract between claimant and the State of Illinois was entered into under date of February 21, 1950, and involves two contracts, namely, Nos. 66281 and 66283, both having the same date.
Paragraph 2 — Throughout the course of the job, in our opinion, certain extra work was contracted for by virtue of verbal authorization from our Mr. Fagen, who is no longer with this Division, by our associate architects, our former Building Construction Supervisor, Mr. Walter Wehrwein, who is no longer living, and a representative of the management of the Illinois State Penitentiary, Pontiac Branch, Pontiac, Illinois.
We are submitting to you our complete files showing numerous cases and copies of letters, results of conferences, meetings, etc., by and between the aforementioned people, none of whom are available at this date, so that we may secure a true picture of the allegations, which the Hyre Electric Company seems able to substantiate in its Counts One and Two in connection with these two projects.
Assuming that the claims are tme and just, we have no method of disputing same. Further, we are of the opinion that it is impossible to furnish satisfactory defenses to this action.’
The evidence shows that contract No. 66281 was in the amount of $116,970.00, and that, at the time of the hearing, and since, there is still a balance unpaid on this contract of $3,000.00, but that all of the work, which was required to be done under the contract, was 100% completed and accepted.
Under the original claim, claimant proved that there was extra work done in connection with this contract, as follows:
A. As summarized in the complaint, paragraph 4, items A through N, both inclusive, in the amount of $8,695.00.
B. There were certain materials bought, acquired and paid for by claimant in advance of the actual work progress, but, due to changes by the Department, these materials were not used, and it was shown in the evidence that claimant was unable to use them otherwise, or to dispose of them. The amount proved as to this item was $2,802.48.
C. Claimant made proof of items of increased cost of materials due to the delay in permitting claimant to proceed with performance under contract. This claim is represented by the difference between the quoted' prices on or about the time! of the date of the contract and the actual purchase prices at the time claimant was permitted to proceed. These items generally covered wiring cables, junction boxes and fittings, fiber ducts, concrete delivered to the site, reinforcing steel, form number and equipment rental, totaling $12,411.26.
D. The claim also included the difference in cost of labor as of the time of the entering into the contract and the period during which performance was allowed, or permitted, or possible (which was from 18 months to 2 years later), which amounted to $11,329.95.
E. The increased job cost of supervision on the site came to $20,251.38.
This makes a grand total of additional costs of $55,490.07. In addition claim was made for overhead of 15%, which amounted to $8,323.51, and profit of 10%, or $6,381.35, and bond costs of 1% amounting to $701.94, making a total of all the extras and claims for additional costs, labor and job supervision of $70,896.87, which, plus the $3,000.00 due and unpaid on the original contract, makes a grand total of $73,896.87 under this claim of the complaint.
Under Count Two of the complaint, the evidence shows that the amount of contract No. 66283 was $62,745.00. All of the contract price was paid except, and there is still due thereon, a balance of $150.00, and it was shown that all of the work required by said contract was done and accepted. The evidence shows that there was extra work done in connection with this contract, which arose through field conditions and changes in situation entirely different from those anticipated at the time of the drawing of the plans (1947), and the time at which the work was done (1952-1953). This additional work, as called for by representatives of the Department and the associated architects, who were in the field and on the site, is supported by letters, vouchers and minutes of meeting, summarized as follows:
Additional work as agreed on September 26, 1952, $11,387.00, and the reworking of West Cell House panels for the agreed price of $431.00. Because of the delay (about 2 years), the per hour for labor increased from $1.871/2 per hour to $3.12 per hour. The total hours involved was 6,660. The difference involved was $1.65 per hour, and the additional cost to claimant was $10,989.00. The insurance on the additional hours was 12.4% and amounted to $1,362.63.
As a part of the claim in Count Two, certain motors were purchased and delivered to the site at the time the contract was entered into, but it was impossible to put them into operation within a reasonable time after they were purchased and delivered to the site, and because of the 2 Vi years delay these motors had to be re-worked, which involved 235 hours at the then rate of $3.20 an hour, making a total for this item of $725.00. The insuranee on this item was 12.4% amounting to $89.90, the 15% overhead amounted to $1,974.98, and profit at 10% amounted to $1,514.15, and the bond premium of 1% amounted to $284.73. The total of all of these items for extras and costs of delay amount to-$28,758.39, which amount, plus the $150.00, which is due on the balance of the contract, makes a grand total under Count Two of $28,908.39.
The total under both Counts amounts to $102,805.26.
The trial was commenced on April 10, 1957 by your Commissioner in Room 827, 160 North LaSalle Street, Chicago, Illinois. Respondent filed a Departmental Report, which was already in the record, as it had been filed with the Court of Claims on March 4, 1957. Respondent did not file an answer to the complaint, and under the mies a traverse or denial is considered to have been filed.
After a careful consideration of all the evidence, and having had the opportunity to observe the witnesses on the stand, their demeanor while on the witness stand, and having examined all of the exhibits, Nos. 1 to 43, and the testimony of the witness, J. N. Gaunt, who stated he inspected the work, and that the work was satisfactory in accordance with contracts, and all additional work was agreed upon by the Department heads; and that the state was at fault in not permitting claimant to do its work on time; as well as that of the witness for claimant, Ernest H. Meyer, who produced a time sheet and records of materials on behalf of claimant; and on listening to arguments of counsel, it is my opinion that claimant has proven its case by a preponderance of the evidence, and, in accordance with the Departmental Report, respondent admitted that the work was done, and that claimant was entitled to be paid, but they were not paid because the appropriation had lapsed on September 30, 1953.
It is my opinion, therefore, that claimant should be allowed the sum of $102,805.26, and I, therefore, recommend that the payment be made and approved by the Honorable Judges of the Court of Claims.
Respectfully submitted,
Herbert G. Immenhatjsen,
Commissioner.”

An award is, therefore, made to claimant in the amount of $73,896.87 under Count I, and a further award of $28,908.39 under Count II, or a total amount of $102,805.26.


author: Wham, J.

text:
    (No. 4746
    The University of Chicago, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1957.

    Walter V. Leen and Howard H. Moore, Attorneys for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, The University of Chicago, An Illinois Corporation, filed its petition praying for an award against respondent in the amount $2,247.82. The record submitted to the Court consists of the petition, respondent’s Departmental Reports, claimant’s brief and argument, transcript of evidence and the Commissioner’s report. We have considered the record, and find that claimant is entitled to an award against respondent, State of Illinois, for the amount prayed, and adopt the report of Herbert G. Immenhausen, the Commissioner before whom the matter was heard, as our opinion in the cause. A copy of his report is attached hereto, and made a part hereof.

“Commissioner’s Report
The University of Chicago, An Illinois Corporation, by its attorneys Howard N. Moore and Walter V. Leen, filed its claim in the above entitled case on October 2, 1956, wherein it seeks to recover a balance of $2,247.82, allegedly due under a grant given it by the Mental Health Services of the Department of Public Welfare of the State of Illinois for the purpose of setting up and operating a Child Psychiatry Unit in the Bobs Roberts Hospital of the University of Chicago Clinics, which unit was to be used for child guidance and community services.
The original amount requested by claimant in a letter dated April 13, 1954 was $18,736.00. By letters dated October 19, 1954 and October 27,
1954, Dr. Otto L. Bettag, Director of said Department of Public Welfare, advised claimant that, in the interest of the stability of the project, it was not deemed advisable to make a grant in the full amount requested, and that the grant had been reduced to the amount of $6,000.00. Such a grant had been approved, and was to be payable from the Mental Health Fund of the State of Illinois. The letters further stated that it was understood the reduced amount of the grant was to be used in partial support of the cost of setting up and operating the proposed Child Psychiatry Unit.
On November 3, 1954, a letter was sent to claimant by Mr. E. F. Marten, Acting Deputy Director, Administrative Services, Department of Public Welfare, State of Illinois, stating that the grants from the Mental Health Fund were payable on a basis of reimbursement for costs incurred in furtherance of the proposed grant.
Claimant relying upon such proposed grant from the Department of Public Welfare incurred costs during the period ending June 30, 1955 in the total amount of $4,507.24. Claimant was reimbursed in the amount of $2,259.42, representing a total of the costs incurred prior to April 30, 1955. The amount of the chargeable grant, which was incurred during the subsequent period from May 1, 1955 through June 30, 1955 was $2,247.82.
The claim for $2,247.82 was submitted by claimant on a State of Illinois invoice voucher form to the Department of Public Welfare, for the attention of Mr. E. F. Marten, on December 22, 1955. Said invoice voucher was subsequently returned without payment to claimant, and was accompanied by a letter, dated December 30, 1955, from the Department of Welfare, which stated that the appropriations from which the grant was payable had lapsed 00 September 30, 1955, and, therefore, the Department was unable to reimburse claimant for this amount. It is now claimed that there is due and owing claimant, The University of Chicago, by respondent the sum of $2,247.82, and that claimant is justly and equitably entitled to the amount claimed from the State of Illinois after allowing all just credits.
Respondent, State of Illinois, did not file an answer to the complaint. Respondent filed a Departmental Report in which it was stated that it could see no reason why this claim should be resisted by the State of Illinois.
Your Commissioner, Herbert G. Immenhausen, set the case for hearing on December 19, 1956 at 10:00 A.M., in Room 827, 160 N. LaSalle Street, Chicago, Illinois.
Claimant called as its witness, Mr. Ted Kula of 8809 California Avenue, Evergreen Park, Illinois, the auditor in charge of the files of The University of Chicago. He testified that he was familiar with the work done by claimant, The University of Chicago, and identified claimant’s exhibits Nos. 1 to 8, inclusive, copies of which were attached to claimant’s petition. Claimant also placed on the stand Miss Helen Frazier of 5744 S. Drexel, a psychiatrist employed by The University of Chicago, who testified as to the work described in claimant's exhibit No. 7. She stated the work was done, and that the charges therefor were fair and reasonable.
It appears from the evidence and exhibits that the work contemplated in said grant was satisfactorily completed, and that The University of Chicago is entitled to an award of $2,247.82. Further, it appears the only reason it was not paid was because a statement therefor was not presented and certified before the appropriation lapsed on September 30, 1955. An award should, therefore, be made to The University of Chicago in the amount of $2,247.82.
(Signed) Herbert G. Immenhausen,
Commissioner”

It is to be noted that respondent filed no answer to the complaint filed herein, and stated in its- Departmental Report that, “Since the amount of $2,247.82 was properly certified to us as having been expended in the operation of the aforementioned clinic, and there were ample funds remaining in the appropriation to have paid this amount, we see no reason why this claim should be resisted by the State of Illinois ’ \

It is, therefore, our order that an award, be made to The University of Chicago, An Illinois Corporation, in the sum of $2,247.82.


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    (No. 4769
    Standard Concessions, Inc., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1957.

    Herbert M. Spector, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Standard Concessions, Inc., A Corporation, filed its complaint on March 25, 1957 seeking reimbursement from respondent for overpayment of utility services.

The record consists of the complaint, Departmental Report, and stipulations entered into between the parties.

The facts of the case are as follows:

Claimant, Standard Concessions, Inc., operated a concession at Blackhawk State Park in the County of Rock Island under lease, dated May 22, 1955, marked exhibit A, and lease, dated May 22, 1950, marked exhibit B. Among other things, the lease provided that the changes for utilities should be divided between claimant and the State of Ilinois on the basis of separate meters. On May 10, 1956, it was discovered that claimant and the state were using the same meter, and the entire bill had been charged to claimant.

The Departmental Report acknowledges the error. Paragraph No. 16 thereof states that 65% of the bill should have been charged to the State of Illinois, and 35% to claimant.

■ Claimant has set out the monthly bills from May, 1950 to May, 1956, and in its claim for reimbursement asked the sum of $1,827.39. This amount would properly represent the 65% used by the State of Illinois after deducting a credit of $63.83, representing claimant’s share of the utility bills for the months of June, July and August of 1956, which the State of Illinois paid in full. There being no dispute to the facts, it would appear that the State of Illinois has been unjustly enriched in the amount asked in this claim.

However, attention is directed to Section 22 of the Court of Claims Act.

“Every claim cognizable by the Court, arising out of a contract and not otherwise sooner barred by law, shall be forever barred from prosecution therein unless it is filed with the clerk of the .Court within five years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues five years from the time the disability ceases.” (As amended by Act approved July 14, 1955.)

The detailed break-down of the bills discloses the amount of $370.44 paid in 1950; $449.43 for the year of 1951; and, $8.47 for January and February of 1952, making a total of $828.34. Since this Court is without authority to allow a claim barred by the statute of limitations, the sum of $828.34 must be eliminated from the computation of an award in this case.

As previously stated, the total of the utility bills from May, 1950 to May, 1956 amounted to $2,909.57, from which must be deducted the sum of $828.34, the amount of the claim barred by the statute of limitations. The portion of the utilities bill, which should have been assumed by'the State of Illinois, is, therefore, 65% of the balance of $2,081.23, or $1,352.79. From this sum must be further deducted the credit of $63.83, leaving a final balance due claimant of $1,288.96.

An award is, therefore, made to claimant in the amount of $1,288.96. '


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    (No. 4754
    Sharon Sue Greer and Janice Irene Greer, by Martha Greer, next friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1957.

    Thomas P. O’Donnell, Attorney for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimants, Sharon Sue Greer and Janice Irene Greer, minors, by Martha Greer, next friend, filed their complaint in this Court seeking damages for the death of their father, Francis E. Greer.

The record consists of a complaint in two counts, Departmental Report, transcript of evidence, brief and argument of claimants, Commissioner’s Report, waiver of brief and argument by respondent, and Letters of Guardianship.

The facts of the case are as follows:

Francis E. Greer was a member of Headquarters Battery, 209 Field Artillery Battalion, Illinois National Guard, and on August 24, 1947 he reported for training at Camp Ellis, Illinois. On August 26, 1947, while he was on duty, a sudden storm struck the area. The troops were ordered to double time to shelter area, and the decedent fell out of line complaining of a “Charley Horse” in his leg. Shortly thereafter Pvt. Greer became ill, and was transferred to Phelps Hospital in Macomb, Illinois. He was quite ill while in the hospital, but seemed to have made a recovery, and on September 4, 1947 was returned to his home by ambulance.

On September 6, 1947, however, Pvt. Greer died. A postmortem examination was made, and it was found that he suffered from a pulmonary embolus of the left lung. The embolus lodged in the rig’ht ventricle of the heart. The coroner’s report also disclosed a thrombophlebitis of the right leg with a blood clot broken off in the upper part of the femoral vein.

Sharon Sue Green, born June 3, 1945; Janice Irene Green, born December 13, 1946; and Pvt. Greer’s widow, now Teresa Allen, were the sole heirs of the decedent, and it appears from the evidence that their father was their sole support.

This complaint is based on the provisions of Chap. 129, Sec. 143, Ill. Rev. Stats., which reads as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed or sustained an injury to his property, while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man or his heirs or dependents, shall have a claim against the state for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims, the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of tire medical department.”

In the Departmental Beport is incorporated an extract from a report of the proceeding of the Board of Officers of the Illinois National Guard, which was appointed to investigate all facts pertaining to the illness and death of Pvt. Francis E. Greer. It contains the following findings:

FINDINGS:
“The Board having carefully considered the evidence before it finds: That the death of Private Francis E. Greer, ASN 26352442, Headquarters Battery, 209th Field Artillery Battalion, occurred in the military service in line of duty not due to misconduct.
RECOMMENDATIONS:
In view of the above findings the Board recommends:
That allowances for death benefits as authorized by law be paid to legal heirs of the soldier.”

It appears from the evidence that Mrs. Greer remarried. On June 28, 1954, Mrs. Martha Greer, paternal Grandmother, was appointed guardian of the person of the two children, and they have resided with her, since the date of said appointment.

On May 6, 1957, the Illinois State Trust Company of Madison County, Illinois, was appointed Guardian of the Estate of said minors by the Probate Court of Madison County.

In the light of the testimony and the Departmental Report, there appears to be no dispute as to the facts, and, under the provisions of the statute, claimants are entitled to an award.

An award is, therefore, made to The Illinois State Trust Company, Guardian of the Estate of Sharon Sue Greer, in the amount of $7,500.00. An award is also made to The Illinois State Trust Company, Guardian of the Estate of Janice Irene Greer, in the amount of $7,500.00.


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    (No. 4709
    Helen B. Maloney, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1957.

    Ralph T. Smith and Malcolm D. Durr, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Helen B. Maloney, has filed a claim against respondent for personal injuries sustained on August 28, 1955.

On said date, Mrs. Maloney and her sister-in-law went to the Alton State Hospital, a mental institution, to visit her husband, who had been a patient there for more than one month. It was customary for relatives to visit patients, who were not violent or dangerous, or in a, disturbed state, in a room designated as R. C. M., which was used as a dining room. On the afternoon in question, during visiting hours, there were approximately twenty-five to thirty people in the dining room.

In the room at the same time was a patient by the name of John Pistrui, whose mental condition was described as “a little impulsive”. He had a tendency to have an antagonistic attitude toward women and other patients. However, never before had he been known to be violent.

During the visiting hours, as claimant and her sister-in-law, Mrs. J anet Searcy, were visiting with claimant’s husband,. Mr. Maloney, they heard a big noise uttered by Mr. Pistrui, which was described as anywhere from a “scream” to a “howl”. The father of Mr. Pistrui left the visiting room, and went in search of an attendant for the purpose of either escorting’ Mr. Pistrui out of the room or quieting him.

It appears that there were two other attendants on duty at the time in this particular area. One man by the name of Q. T. Mitchell had been employed at the institution for sixteen years. He was the attendant, who was called to escort Mr. Pistrui out of the room. An attendant by the name of Andrew Buescher, who-at the time was in the Psychiatric Aide Room, heard the commotion, and came into the visiting room. From the record it appears that the attendant, in escorting Mr. Pistrui out of the room, walked a few feet in front of him, and was about three feet from him when he stopped at the water cooler near the entrance to the room, which was a very short distance from where claimant, her husband and sister-in-law were sitting. Claimant was sitting with her back toward the attendant and Pistrui. It appears from the evidence that Pistrui picked up a chair, and before claimant could move, struck her over the back, which caused her to fall to the floor. In falling, she injured her hand. The blow from the chair also injured the muscles on both sides of the spinal column, causing abrasions and contusions.

When Mr. Maloney and Mrs. Searcy saw Mr. Pistrui pick up the chair, they tried to protect claimant, but were unable to do so. The attendant, who had taken charge of Mr. Pistrui, dove for him, but missed him, and was unable to restrain him from striking Mrs. Maloney.

It is true that prior to this time the patient had never exhibited any acts of violence. However, it is apparent from the evidence that he was antagonistic toward women. He was impulsive, which is also true of other mental patients, and he had, on this occasion, exhibited distinct signs of being emotionally upset. In view of the fact that he was within a few feet of women, including claimant and her sister-in-law, this should have been enough of a warning to the attendant or attendants to escort him manually from the room. This the agents of respondent did not do.

Respondent has asserted and argued contributory negligence and an intervening cause, as well as the fact that the state is not an insurer against accidents. The latter proposition, of course, is true, but, on the other hand, the agents of the state are required to use ordinary care in situations of this kind to protect persons and their property from being damaged by those placed under their charge, as are the facts in this case.

As to the question of contributory negligence, we cannot find that claimant did anything to excite or to invoke the attack made upon her. In this regard, we believe claimant has sustained the burden of proof in showing that she was free from negligence. Further we find that respondent was guilty of negligence in not restraining the patient from attacking a visitor during visiting hours, and that claimant did sustain injuries for which she is entitled to be compensated.

No authorities have been cited to us, which we believe to be directly in point with this particular case. Claimant is relying heavily on the case of Malloy vs. State of Illinois, cited in 18 C.C.R. 137. This was a case where the assailant was described as a dangerous character, and had a criminal record. It was decided on the fact that the state was negligent, knowing of the dangerous propensities of this particular patient, in not keeping him confined, and allowing him to have more freedom than a patient of this kind should have had. We are not basing our decision in this case on the Malloy case.

However, we do believe that there was enough negligence on the part of the state, and that the state’s agents had sufficient advance warning of Mr. Pistrui’s condition, which would have justified and warranted them to keep him under closer surveillance, and properly escort him from a room where there were approximately twenty-five to thirty men and women present, realizing that he might do bodily harm to some of those present in the room, who had a perfect right to be there.

As to the injuries, the testimony showed that claimant was x-rayed at the institution, and was asked to remain over night. She chose to leave, and was taken to another hospital in Alton where she was attended by her own doctor. It appears, from the record that there were no fractures. Claimant testified, and so did the doctor, as to slight injuries to her hand and back. However, it appears that she has made a satisfactory recovery.

She was employed as a stenographer, and was away from her work approximately six weeks. The Commissioner hearing this case found that she had incurred hospital bills in the amount of $332.29, and a doctor bill in the amount of $126.00, and that her loss of earnings was $265.00. The Commissioner further noted that it appeared claimant had made a complete recovery,' and that an award should be made in the amount of $1,723.29.

It is, therefore, the order of this Court that claimant be given an award in the amount of $1,723.29.


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    (No. 4634
    Anthony Sparacino, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1957.

    John R. Snively, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On July 15, 1954, Anthony Sparacino, an inmate of the Joliet Penitentiary, filed a complaint seeking damages for an injury received by him, while working with the “Yard Gang”.

The complaint is in Three Counts, and alleges:

Count I
(a) Failure to promulgate safety rules.
(b) Failure to exercise care for safety-of claimant.
(c) Failure to instruct claimant.
(d) Failure to furnish a safe place to work.
(e) Failure to furnish proper tools.
(f) Failure to furnish adequate help.
Count II
Violation of statutory duty in compelling claimant to work outside prison walls. (Ill. Rev. Stats., Chap. 108, Sec. 44.)
Count III
Malpractice by physicians employed by the State.

The facts of the case are as follows:

Anthony Sparacino was received at the prison on January 31, 1951. His initial physical examination indicated that he was in excellent condition, and he was placed in healthy group “A”. This classification meant that he could do any kind of work assigned to him.

Claimant worked in several departments, and at his request was transferred to the “Yard Gang”. On November 3, 1952, he signed the “Honor Pledge”, which permitted him to work outside the prison walls.

On November 5, 1952, a detail of twenty prisoners were assembled to go over to the old quarry, near the Diagnostic Center, for the purpose of sorting out a pile of iron, which had accumulated there. Claimant was a member of this detail.

Officer Brule, who was in charge, directed six men, including claimant, to pick up a railroad rail, and move it to a stock pile some distance away. The weight of the rail was estimated to be between 400 and 500 pounds.

When the group reached the stock pile, five of the inmates released the load momentarily before claimant. The rail then slipped out of his hands, fell across the arch of his right foot, and caused the injury complained of.

Claimant was taken to the prison hospital, and was examined by Dr. McSweeney. Two X-Rays were taken, and it was discovered that he suffered from a fracture of the internal cuneiform bone. Dr. McSweeney ordered a splint placed on the foot, and hot and cold packs were administered to reduce the swelling. Claimant was hos-. pitalized for a period of 35 days, and, on December 7, 1952, additional X-Rays were taken to check the condition of the injury.

The hospital records, received in evidence, state that the internal cuneiform bone was fusing properly, and that the fracture was in good position and alignment.

Claimant was discharged from the hospital, and returned to the “Yard Gang”. He answered sick call on many occasions thereafter, complained of pains in his foot and side, and also stated he suffered headaches. He alleges that this pain was caused by the injury, which he contends is permanent. Sometime later, claimant was given lighter work as a night elevator operator.

At the outset, it should be pointed out that claimant is not entitled to the benefits of the Workmen’s Compensation Act, as a convict is not an “Employee” under the Act. Tiller vs. State, 4 C.C.R. 243. This case must, therefore, be considered under the common law rules of negligence.

With reference to Count I of the complaint, claimant was directed to perform an ordinary act of manual labor. No “rules” were necessary, nor were any special tools or appliances needed. ■

It is somewhat ironical to note that claimant, prior to commitment, was engaged in picking up and trucking junk. He was accustomed to handling heavy loads, and was physically able to do the very job assigned to him.

The transcript of evidence does not disclose why the other prisoners released the rail before claimant did, nor does claimant offer any reason why he did not release the load at the same time as his co-worker, who was directly ahead of him, and visible to him. In the absence of proof, one way or another, it may well be that this injury was the result of an accident in which no one was at fault, and in which no one could he charged with negligence.

The Court, therefore, finds that claimant has failed to prove any act of negligence in Count I on the part of respondent.

Count II alleges violation of statutory duty. (Ill. Rev. Stats., Chap. 108, Sec. 44.)

“No labor shall be performed by convicts in the penitentiary in any stone quarry or other place outside the walls of the penitentiary: Provided, this act shall not prohibit such labor being performed in quarrying stone for the use of the state by its authorized agent, nor the employment of convicts outside of the prison walls by the Department of Public Safety in labor incident to the business and management of the penitentiary.”

Claimant’s argument in this regard is not well taken. The junk pile, while not within the walls of the prison, was on property owned and operated by the penitentiary. The work of sorting junk was an incident in the over-all operation of the prison, and clearly falls within the language of the statute “incident to the business and management of the penitentiary”.

Count III alleges malpractice by the physicians employed by the state.

An examination of the evidence discloses that claimant was immediately taken to the hospital, where he received care for a period of 35 days.

His foot was X-Rayed on three occasions to determine if progress was satisfactory. Claimant alleges that his foot should have been placed in a cast, rather than a splint, but he did not offer any medical testimony to support the charge.

Drs. McSweeney and Harris took care of claimant when he was in the hospital, and testified at the hearing of the case on behalf of respondent. Both were cross-examined by counsel for claimant, and he did not inquire of either of them, if a cast, rather than a splint, would have been the proper treatment in this case.

The hospital record, dated December 7, 1952, which was introduced in evidence, stands uncontradicted in that “the internal cuneiform bone is taking its natural course in fusing and developing callus in the repair of the fracture. The fracture (chip) is in good position and alignment.”

During oral argument, claimant offered in evidence a statement by Dr. Samuel Behr. The second paragraph of the statement was admitted in evidence, subject to the objection of respondent.

“On examination, the patient has a bilateral, severe pes planus with marked pronation of the feet. There are palpable bony excresences' over the mid tarsal joints of both feet. Pressure about any point of the mid tarsal joint of the right foot caused the patient to complain of severe pain. The patient walked with a limp. There was no atrophy of either leg on measurement. Circulation of both feet was excellent. Examination of X-Rays of the right foot revealed a mid tarsal arthritis, but no evidence of old or recent fracture.”

The statement adds little to what is already in the record. There is no dispute but what claimant suffered an injury to this foot, and an arthritic condition is not an uncommon aftermath.

We, therefore, conclude that the evidence does not sustain the charge of malpractice, but, to the contrary, discloses excellent medical care and good recovery.

We have previously held that a convict can maintain an action in this Court, and that a conviction for a felony does not bar a convict from prosecuting a claim before this Court, while in such status.

In McElyea vs. State, 7 C.C.R. 69:

“The law of this state gives unto a prisoner serving a sentence in any penal institution the right to sue or be sued in the courts of this state during the period of such confinement. A convict does not lose his personal rights because of his imprisonment, although he is deprived by law of certain rights of citizenship. Therefore, as he possessed said personal rights, claimant was entitled, able and free to exercise them, even though he was confined in the penitentiary.”

However, the rig’ht to maintain an action subjects claimant to the same burden of proving his case by a preponderance of the evidence, as would be required of any other claimant.

In the instant case, we find that the evidence does not support the allegations in either of the Three Counts of the complaint, and that claimant has, therefore, failed to prove his case by a preponderance of the evidence.

An award is, therefore, denied.