text:
    (No. 5633
    Leslie Lee Steen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 26, 1973.

    Beermann, Wwerdlove & Woloshin, Attorney for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Burks, J.

In an opinion filed October 10, 1972, this court found that the State was liable for certain personal injuries sustained by the claimant and granted an award for claimant’s damages in the amount of $13,333.63. [Oral argument had been heard by the full court on September 22, 1972.]

On October 11, 1973, pursuant to claimant’s petition for a rehearing on the question of damages only, further oral argument was heard by the full court. Claimant was personally present and displayed the scars on his head and abdomen which the court had referred to in its prior opinion.

Claimant was represented by able counsel who argued that the award made in our prior opinion did not adequately compensate the claimant for his injuries. Claimant conceded that the court had correctly stated claimant’s pecuniary loss for medical expenses and loss of earnings to be $2,418.63. It does not appear from the further evidence submitted that the court had overlooked or misapprehended the severity of claimant’s injuries from which he has obviously made a good recovery.

The main thrust of new argument submitted by claimant at the rehearing was that, if this matter could have been tried before a jury in the Circuit Court, in all likelihood the jury would have awarded a higher sum than this court granted. Claimant cited examples of jury verdicts in similar cases which would tend to substantiate this hypothesis.

We do not believe that the legislature intended this court, in granting awards, to be guided by any speculation as to the amount a jury might award in a similar case, if the State were suable in the Circuit Court.

The State of Illinois has been one of the leaders in abandoning its sovereign immunity and assuming liability for wrongs suffered by its citizens at the hands of the State, its agents or employees.

In creating this specialized court in which the State consents to be sued, the legislature has sought to do everything reasonably possible in establishing fair and equitable procedures in the settlement of claims against the State and, at the same time, protecting the public interest against inflated or exhorbitant judgments. This apparently is one of the reasons that trial by jury has never been authorized in the Court of Claims, and why it is not required by the Illinois Constitution of 1970:

"The right of trial by jury as heretofore enjoyed shall remain inviolate.” [Art. I, §13]

Juries have been known to give greater consideration to the ability of a defendant to pay than to the merits of the case. Damage cases resulting from automobile accidents, when the defendant carries indemnity insurance, often receive this kind of treatment at the hands of juries. Certainly the state government, with its substantial sources of revenue, might well be looked upon by a jury as being able to pay any judgments against it without difficulty.

Some scholars believe that one of the objections to placing the State under the jurisdiction of the Circuit Courts is that juries frequently return verdicts which are unreasonably high. The State, in assuming liability for its wrongs, ought not to be placed at a disadvantage in any resulting litigation.

Procedures in the Illinois Court of Claims closely follow the procedures of the United States Court of Claims including the fact that all cases are assigned to a Commissioner for hearing, and trial by jury is not authorized or permitted.

In carrying out what we perceive to be legislature’s intent, this court conscientiously attempts to grant awards in all legitimate claims in an amount we consider to be fair and reasonable. There is no set rule of thumb. It is always a matter of judgment. Although our judgment is based on the combined experience of the members of the court, we acknowledge the fallibility of judges. Hence, we readily grant a rehearing on points we are alleged to have overlooked or misapprehended.

In the case at bar we do not feel that we were guilty of such errors. Nor, for reasons stated above, should we be influenced by the possibility that a jury might have granted the claimant a higher amount in damages.

In our opinion of October 10,1972, claimant received full compensation for his total pecuniary loss plus approximately five times his special damages for medical services and loss of wages. Considering all the circumstances, the court feels that our prior award is fair and reasonable.

We, therefore, reaffirm our opinion filed October 10, 1972, awarding damages to the claimant in the sum of $13,333.63.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 73-CC-98
    Charles W. Huver, Ph.D., Claimant, vs. State of Illinois, Attorney General’s Office, Respondent.

      Opinion filed November 1, 1973.

    Charles W. Huver, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-259
    Frontier Ford, Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed November 1, 1973.

    Frontier Ford, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-328
    Better Hearing Center, Inc., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed November 1, 1973.

    Better Hearing Center, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-62
    Steve Farantzos, D.D.S., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 1, 1973.

    Dr. Steve Farantzos, D.D.S., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6978
    Texaco, Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed November 1, 1973.

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


text:
    (No. 73-CC-282
    County of Cook, and Cook County Department of Public Aid, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed November 9, 1973.

    Bernard Carey, State’s Attorney of Cook County, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-57
    Univac, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed November 13, 1973.

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


text:
    (No. 73-CC-187
    General Tire Service, Division of General Tire & Rubber Company, Claimant, vs. State of Illinois, Departments of Transportation and General Services, Respondent.

      Opinion filed November 13, 1973.

    General Tire Service, Division of General Tire & Rubber Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-196
    Mac Neal Memorial Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 13, 1973.

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


text:
    (No. 73-CC-387
    Home of the Good Shepherd of Omaha, Inc., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 13, 1973.

    Home of the Good Shepherd of Omaha, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-63
    Steve Farantzos, D.D.S., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 13, 1973.

    Dr. Steve Farantzos, D.D.S., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-74
    Moore Business Forms, Inc., Claimant, vs. State of Illinois, Department of Finance, Respondent.

      Opinion filed November 13, 1973.

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


text:
    (No. 74-CC-85
    S & L Motor Parts, Inc. and S & L Central Auto Supply, Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed November 13, 1973.

    S & L Motor Parts, Inc., and S & L Central Auto Supply, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber; Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-89
    J. F. Carney, M.D., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed November 13, 1973.

    J. F. Carney, M.D., Claimant, pro se.

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


text:
    (No. 74-CC-99
    Gerald J. Rabin, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1973.

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


text:
    (No. 74-CC-102
    Kishwaukee Valley Medical Group (Edward J. Chereck, M.D.), Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1973.

    Kishwaukee Valley Medical Group, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-113
    Profexray Division, Litton Medical Products, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1973.

    Profexray Division, Litton Medical Products, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-116
    Town House Hotel, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed November 13, 1973.

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


text:
    (No. 74-CC-117
    Town and Country Ambulance Service, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1973.

      Town and Country Ambulance Service, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-122
    International Business Machines Corporation, Claimant, vs. State of Illinois, Department of Finance, Respondent.

      Opinion filed November 13, 1973.

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


text:
    (No. 74-CC-125
    Midlothian Pharmacy, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1973.

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


text:
    (No. 74-CC-128
    Bruce W. Smit, D.P.M., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1973.

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


text:
    (No. 74-CC-129
    John P. Ledlie, Claimant, vs. State of Illinois, Office of the Commissioner of Banks and Trust Companies, Respondent.

      Opinion filed November 13, 1973.

    John P. Ledlie, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-135
    Lester J. Baranov, M.D., S.C., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1973.

    Lester J. Baranov, M.D., S.C., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Burks, J.

text:
    (No. 5566
    William Pugh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1973.

    Leon R. Cooke, Attorney for Claimant.
    William J. Scott, Attorney General; Bruce Finne, Assistant Attorney General, for Respondent.
   Burks, J.

This action was brought to recover damages for personal injuries suffered by the claimant while he was an inmate in Stateville Penitentiary at Joliet. Claimant’s injuries were allegedly caused by the negligent acts of a prison guard who forced claimant, under threat of punishment, to ride in an unsafe place on a tractor in violation of prison rules.

We will first state certain facts which are not in dispute. On April 22, 1967, claimant was a prisoner at Stateville Penitentiary, confined on the prison farm. On that date he was assigned by the officer in charge to work on the plumbing detail, digging ditches and pushing a wheelbarrow. The 7 men in this detail were taken by truck to the place where the work was to be done, in the vicinity of the dairy barn. At the end of the day’s work, the claimant and approximately six other prisoners, in violation of penitentiary rules, rode on a tractor from the work area back to the dormitory. One prisoner stood on each side of the driver. Three or possibly four prisoners, including the claimant, sat on a pipe running the width of the front of the tractor with their feet dangling into a large scoop which was held to the tractor by the pipe. As the tractor, traveling approximately twenty miles per hour, approached the dormitory, it struck a hole in the road. Although claimant was trying to brace himself by holding onto the pipe with both hands, he was thrown onto the tire of the tractor and from there to the road. He broke both bones in his right arm, leaving some permanent loss of use.

Claimant’s testimony at the hearing may be summarized in its pertinent part as follows: On the date of his injury, there was no truck to take the prisoners back to their dormitory when their day’s work was finished. Therefore, an officer in charge ordered the men to ride on the tractor as stated above. Claimant thought that the officer’s name was Byrd. Claimant protested to this officer that it would be dangerous to ride on the scoop of the tractor and particularly on the end where claimant was directed to sit. His remonstrations were ignored, and the officer threatened to call the Lieutenant if claimant did not obey. Claimant understood that the penalty for disobeying such an order would automatically be 7 days in isolation. Hence, he rode on the scoop in a dangerous position as directed.

The only evidence presented by the respondent, by way of rebuttal, was the testimony of one Howard Burge. Burge was formerly employed, but since retired, as an officer at Stateville where he had been in charge of the dairy for some 16 years, and was so employed at the time of claimant’s injury. Officer Burge testified that he had never been in charge of a ditch digging detail; did not ■ know the claimant but was sure that the claimant had never been under his supervision.

The court is somewhat mystified that respondent would rely solely on the testimony of a witness who said he knew nothing about claimant’s accident or any of the facts relating to it. Officer Burge said that he, personally, had never ordered an inmate to ride on a tractor; confirmed the fact that there is a prison rule against anyone riding on a tractor other than the driver; and that he did not know what officer was in charge of the ditch digging detail at the time of claimant’s injury.

If so, the court is at a loss to understand why the officer who was in charge of the ditch digging detail was not called as a witness. Respondent’s records would surely contain this information on a case in which a prisoner is seriously injured and taken to the prison hospital. It also seems odd to us that the prison’s records of this accident were not offered in evidence by the respondent.

Respondent bases it defense on the fact that claimant was confused as to the name and the physical appearance of the officer who ordered him onto the tractor. Contending that there was no officer at Stateville by the name of "Byrd”, and that neither Officer Burge nor any other officer is as large a man as claimant had previously described "Byrd” to be, respondent concludes that no officer gave the order; that claimant must have voluntarily elected to ride as he did on the tractor; and that claimant was, therefore, contributorily negligent.

We do not believe that such conclusion is logically or legally justified. The fact that claimant admittedly had difficulty in spelling and pronouncing names does not necessarily impeach his credibility. We note, at one point in the record, he referred to Captain Cotter as Captain Kanter. It is reasonably understandable that he thought Officer Burge’s name was "Byrd” and that, as he explained, this officer looked smaller to him at the hearing than he did when claimant last saw him in his uniform.

We must either accept the testimony of Officer Burge as being factual or as possibly being based on his faulty memory of an incident that had occurred some 3 years prior to his testimony.

If we accept Burge’s statements at face value, then there is no evidence in the record to refute claimant’s testimony as to the cause of his injury. Burge, being respondent’s only witness, said that he knew nothing about claimant’s accident or any of the facts relating to it.

This leaves circumstantial evidence as the only possible basis for a finding that claimant was guilty of contributory negligence. We can conceive of only three possible theories on which such a finding might be based, all sheer conjecture, and, in our opinion, all untenable:

1. Claimant could have waited for truck transportation back to the dormitory, but elected to ride on the tractor; or
2. Claimant could have walked back to the dormitory rather than risk the dangers of riding the tractor; or
3. Claimant and his crew arranged their own transportation back to the dormitory by riding the tractor without permission and in violation of prison rules.

There is not a shred of testimony that a truck was sent or would be sent to the dairy barn to take the detail back to the dormitory. The only testimony is that there was no truck. Therefore, claimant did not elect to ride on the tractor when he could have ridden on a truck.

As for walking back to the dormitory, the court takes judicial notice of the fact that individual prisoners cannot roam about prison grounds at will. Unless there was an officer or inmate designated to march the men back to the dormitory, there was no way for claimant to go from the barn to the dormitory by walking. There was no testimony that the men were to be marched to the dormitory.

The record shows that the prisoners, as well as the guards, knew that prison rules forbid anyone other than the driver to ride on a tractor. They also knew the punishment for violating rules. Several of the men, who rode with the claimant on the tractor, were coming up for parole and were keenly aware of the consequence of disobeying an order. The suggestion that claimant and his crew deliberately violated the rule against riding on a tractor, without permission or order, is incredible. In any event, we cannot substitute such conjecture for unrefuted testimony in the record.

Following is the only logical conclusion we can draw from the evidence in this case. A prison guard, whether it was Officer Burge, who said he was in the nearby dairy barn, or some other officer, apparently seeing that no other transportation was available, told the prisoners to get on the tractor and go back to the dormitory. In so doing, the officer violated a rule of the institution that was established for the protection and safety of the inmates. This act of respondent’s officer was the direct and proximate cause of claimant’s injuries. Claimant, having no choice but to obey respondent’s order, was free from contributory negligence.

We need not cite the numerous cases in which this court has held the State liable for injuries to a prisoner under similar circumstances. Many such cases are referred to in I.L.P. Vol. 39 §4, "Liability for Injuries to Prisoners” which summarizes the rules of law applicable to this claim.

We turn now to the question of damages. Claimant prays for an award in the sum of $25,000 for his injuries, his resultant disabilities, and his loss of earnings. The only evidence in the record on the question of damages was that submitted by the claimant. This evidence was not challenged nor refuted by the respondent, and the question of damages is not mentioned in respondent’s brief.

It is established from the record that claimant suffered a severe fracture of the radius and ulna bones in his right arm. He was taken to the penitentiary hospital where x-rays were taken, a cast placed on his arm, and where he remained hospitalized for 3 weeks. He was then discharged from the penitentiary and entered Illinois Research Hospital. There surgery was performed on claimant’s arm; a plate and a rod were inserted in the arm which was then placed in a cast. Claimant was confined at this hospital for 6 weeks and wore the cast on his arm for 12 weeks. The doctors told him to exercise his arm as there would be some continuing limitation of use.

Dr. Samuel R. Rubert, who subsequently examined the claimant and took further x-rays of his arm, testified as a witness for the claimant, and his x-ray films were made a part of the record at the hearing. Dr. Rubert offices in Chicago and specializes in orthopedics and traumatics.

Dr. Hubert testified as follows: The x-rays showed a fracture through the mid portion of the radius bone and ulna bone of the forearm. There has been an open reduction with a metallic fixation device of both sites of fracture. The fracture in the ulna had been fixed with a pin extending 10 inches in length, and the area of fracture shows either delayed healing or a non-healing process taking place. The area of fracture in the radius is crossed by a plate to 4 inches long, which is attached with five 1-inch screws. Upon examining claimant’s arm during the hearing, Dr. Hubert testified that there is an area of operative scarring of about 6 to 9 inches long on the arm. He found at least ten degrees less flexion in the injured arm, as compared with the other arm. He found a difference of about 10 to 20 degrees in extension of the right wrist, and about 15 degrees difference in flexion of the small finger. The said condition of the claimant is permanent. The pins in the arm have been and will continue to be a source of irritation and pain, and will limit claimant’s activities to some extent.

Claimant’s former occupation was that of a tailor. Because of his injury and the resultant limitation on the use of his fingers, he has been unable to work as a tailor. He earned modest sums at odd jobs at South Water Market but was unable to find regular work until some 2 years after his injury when he was employed by National Lead as a rood man. This job lasted only 4 weeks, claimant said, because he could not maintain the production pace required. He apparently has subsequently relied on odd jobs. While the court is not convinced that claimant’s failure to find gainful employment on a permanent basis is entirely due to his injuries, which were not that severe, we are satisfied that claimant has suffered some unavoidable loss of earnings as a result of his injuries. His out of pocket expenses for medical care were apparently less than $200 since most of his hospital and medical care were provided without cost to claimant.

This court has frequently stated that there is no fixed rule of compensation in damages for personal injuries, and that compensation is incapable of exact mathematical calculation. Hence, we follow the general rule stated in I.L.P. Damages §140. "The measure of compensatory damages is such sum as will compensate the person injured for the loss sustained, with the least burden on the wrongdoer consistent with the idea of fair compensation.”

Our Appellate Court has said that the test of propriety of the amount of damages awarded is not the amount of out of pocket expense, but whether the award is within the limits of fair and reasonable compensation. Congiardo v. Bordenaro, (1969) 105 Ill.App.2d 374.

In exercising the discretion which the above rules place upon this court, it is our judgment that an award of $12,500 to the claimant in this case would be fair and reasonable in the light of all the circumstance and the evidence adduced.

The claimant, William Pugh, is hereby granted an award, for the damages he has sustained, in the amount of $12,500.


text:
    (No. 6284
    Walter R. Peterson, M.D., and Donald Ross, M.D., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed November 13, 1973.

    Dr. Walter R. Peterson and Dr. Donald Ross, Claimants, pro se.

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


text:
    (No. 6965
    The Roscoe Company, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed November 13, 1973.

    The Roscoe Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7055
    H. O. Trerice Co., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 13, 1973.

    H. O. Trerice Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5343
    Mildred M. Pyle and Billy Pyle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 19, 1973.

    Harris, Holbrook and Lambert, Attorneys for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

This action arises out of an intersectional collision allegedly caused by the state’s negligence in failing to replace a downed stop sign within a reasonable time after having actual or constructive notice of the defect. In the two-count complaint, claimant Mildred M. Pyle seeks damages for personal injuries she suffered in the collision. Her husband, Billy Pyle, claims damages for the loss of his wife’s services and consortium as a result of her injuries. [Hereafter the word "claimant” in the singular refers to Mildred M. Pyle unless otherwise indicated.]

The accident occurred at approximately 11:30 a.m. on February 12, 1966, at the intersection of Route 148 and old Route 13 in a sparcely populated area in Williamson County west of Marion. It was a clear day, the road surface was dry, and cars approaching from any direction had an unobstructed view of the intersection.

Route 148 is a north-south, preferential highway, protected by stop signs facing traffic approaching it on old Route 13. At this intersection Route 148 widens to 4 lanes with a 6 foot center curb dividing the two northbound and the two southbound lanes. Being a through highway, traffic on Route 148 does not stop at this intersection. It merely has warning signs some 750 feet back, indicating a crossroad, old Route 13.

Old Route 13 is a 2-lane, east-west highway on which traffic must stop before entering or crossing Route 148, and on which there is a warning sign, 737 feet in advance of the intersection, announcing "STOP AHEAD”. For traffic approaching from the west, as claimant was, there are normally 2 stop signs at the intersection. One of the signs stands on a channel island, dividing the westbound lane from the right turn, commanding through traffic to stop. [This sign was down at the time of claimant’s accident. It was knocked down by another accident which had occurred some 29 hours earlier.] The other stop sign stood on the curve of the right turn lane. It sits at an angle so that it is visible to east bound traffic for a distance of 125 feet. Photographic exhibits in the record also show that the back of the large octagonal stop sign across the intersection facing west, was clearly visible from cars approaching from the east.

As claimant, Mildred Pyle, was driving east on old Route 13 and approaching the intersection moments before the accident, she failed to see the "STOP AHEAD” sign but did see a red pick-up truck coming south on Route 148. She estimated that she was then about 120 feet from the intersection; that the truck was about 450 feet north of the intersection; that she had slowed her speed to about 20 miles an hour; and that the truck was traveling about 50. While aware of the oncoming truck, claimant did not stop at the intersection, nor did she see the truck again until the instant prior to the collision. Since she did not see a stop sign in her lane, claimant attempted to cross the intersection without stopping. Claimant said, "I thought he had to stop because I didn’t.”

A witness, Tom Stubblefield, who had been following Mrs. Pyle "for quite a ways” after she had passed him at a speed between 45 and 50 miles per hour, saw the two vehicles approach the intersection. Stubblefield estimated the truck’s speed to be 50 to 60 miles per hour, and told his boy, "If somebody doesn’t stop, there will be a collision”.

Claimant drove her stationwagon into the intersection and had crossed the first of the 2 southbound lanes of Route 148 when the truck, owned and driven by Cecil Milo Erwin, hit claimant’s car broadside, directly at the doors. Claimant was knocked completely out of her car, landed on an island in the northbound side of the road, and sustained serious and permanent injuries.

Claimant, alleging that respondent was negligent in failing to replace a downed stop sign or warning motorists of said dangerous condition at this intersection within 29 hours after a State trooper had discovered the downed sign, contends that said negligence was the direct and proximate cause of her injuries.

Claimant concedes that the driver of the truck was also negligent and did, in fact, recover the sum of $4,000 in damages from him in a separate action in the Circuit Court of Williamson County, No. 66-L-379, a case that was disposed of under a covenant not to sue. [As a result of claimant’s said separate suit pending, her claim in this court was continued generally for a period of 2 years.] Claimant takes the position that the negligence of the truck driver, Milo Erwin, and the negligence of the State are concurrent; and the respondent cannot avoid responsibility for claimant’s injuries by reason of the fact that a third party was also negligent as an intervening cause.

Claimant seeks to negate any possibility that she was contributorily negligent on the theory that the downed stop sign converted this crossing into an "open” intersection and hence, she had the right to assume that she had the right of way.

Both parties, at the outset of their briefs, call our attention to Gray v. State, 21 C.C.R. 521, a case in which the claim was denied on an entirely different set of facts, but in which we stated the following general rule which is applicable to the case at bar:

“The State is not an insurer against all accidents, which may occur by reason of the condition of its highways. However, the State is negligent, if, having knowledge of dangerous conditions on its highways, it fails to warn users of the highways of such dangerous conditions.”

In analyzing the cases cited both for the claimant and respondent, we find that the factual situations in most of them are at variance with the instant case, and some present only abstract propositions of law which are not applicable to the facts as they exist in this claim.

To apply the above rule to the case at bar, we must determine whether and at what time the State had "knowledge of a dangerous condition on its highway” and whether it failed to take appropriate remedial action within a reasonable length of time. The answer, of course, depends upon the facts and circumstances which we will now consider.

It is admitted that the down stop sign was first discovered by State Trooper Jack Anderson 29 hours before claimant’s accident. Trooper Anderson reported the downed sign by phone to State Police Headquarters in DuQuoin. The Division of Highways, which has the responsibility for maintaining and repairing highways, including the stop sign in question, denies that it had any notice of the sign being down prior to the accident. Although the accident occurred on a holiday week end, an engineer was on duty at the Division of Highways traffic office to accept emergency calls. Apparently there was a temporary breakdown in communication between the State Police and the Division of Highways in this instance. The Division of Highways’ report states that it repaired this stop sign immediately after receiving notice that it was down, viz., at 9:30 a.m. on Monday, February 14.

Claimant contends that Trooper Anderson was under a duty to report the downed sign to the appropriate state authorities and that, therefore, the State had notice, either actual or constructive, that the sign was down 29 hours prior to this accident. We agree with claimant’s contention on this point.

Whether this particular downed sign created the type of "dangerous” condition, contemplated by the rule in Gray, is another question. Apparently Trooper Anderson did not consider that the downed sign created such a hazardous condition, based on his 14 years experience as a state trooper, that he should remain at the site or take any other emergency measures after reporting to police headquarters. He may have concluded that the other existing warning signs, information signs, and improvements in the intersection would clearly indicate to an east bound driver that a major intersection existed, and that an ordinarily prudent driver would see the danger and take proper precautions for his or her own safety. We believe there is sufficient evidence in the record to support such a conclusion by Trooper Anderson, although he did not so testify.

We turn next to the question as to what length of time constitutes a "failure” on the part of the State to take appropriate remedial measures after receiving notice of a downed stop sign. Again we believe the answer depends on the facts and circumstances in each particular case. In the case at bar, we cannot hold that respondent’s failure to repair this particular sign or erect warning signs within 29 hours after notice is negligence per se. To do so would establish a new rule for which we find no support in existing case law nor justification by facts in the case at bar.

Because of the numerous tort actions coming before this court that are based on downed stop signs, this court has reviewed a large body of case law, from our own and other jurisdictions, concerning liability for failure to repair or properly maintain a traffic control device at an intersection. We have found no case holding a responsible governmental body liable when it had no more than 29 hours of notice, actual or constructive. Our survey included many cases involving busy intersections, much more hazardous than the one in the case at bar. Indeed, the shortest length of notice we found in any case in which liability was imposed, was the case cited by the claimant, Caudle v. State, 19 C.C.R. 35 (1949). There the State had 4 or 5 days notice that a dangerous hole existed in the center of its highway.

We will cite a few typical cases in which liability was found, and emphasize the length of notice to the governmental unit. In Johnson v. City of Moline, 338 Ill.App.220 (1949), the city was held liable where a traffic light was knocked down, promptly removed by the city, but not replaced for a period of 6 days. During that 6 day period, several accidents had occurred at this busy city intersection. In Buckley v. City of Chicago, 3 Ill.App.2d 39 (1954), the court found liability where a stop sign had been removed and missing for several months in violation of an ordinance requiring said sign.

This court was also impressed by the following cases from other jurisdictions. In Wagshall v. District of Co lumbia, 216 A.2d 192 (Dist. Col.App. 1966), the court imposed liability where the defendant had six days actual notice of a downed stop sign at a busy intersection. In Fanning v. Laramie, 402 P.2d 460 (Wyo. 1965), liability was found for allowing vegetation to grow and obscure a stop sign since the testimony revealed that this condition developed over several months and because of a mandatory duty imposed by statute to erect and maintain the sign in question. In Firkus v. Rombalski, 130 N.W.2d 835 (Wis. 1964), there was liability where the government had 19 days actual notice that a sign had been removed by vandals and the intersection had obstrubed visibility due to its being heavily wooded. In Cangiamilla v. Brindell-Bruno Inc., 210 So.2d 534 (La.App. 1968), liability was imposed where a stop sign was knocked down and reported 47 days before the accident resulting in suit, and where police contacted highway supervisor a second time because of inaction on part of highway department. In Richardson v. State, 218 NYS 2d. 922 (1961), liability was imposed where state highway crew knocked sign down 5 days before the accident. In Lyle v. Fiorito, 60 P.2d. 709 (Wash. 1936), a county was held liabile where its contractor removed a stop sign and advance warning signs and then replaced stop sign, but not advance warning sign, in a negligent manner so that it fell down and remained down for several weeks, causing a nighttime collision. In Phinney v. Seattle, 208 P.2d 879, Wash. 1949), actual notice of 13 days of a downed stop sign imposed liability where the State removed a stop sign at an intersection with obstructed visibility, and failed to replace said sign. Also see Robinson v. State, 237 NYS 2d 601 (1962).

It should be observed that in all the above cases, as in the Caudle case, cited by the claimant, the length of notice was longer than the 29 hours of notice in the case at bar. We found numerous cases involving longer periods of notice in which liability was denied. We will cite one in which the facts are similar in many respects to the instant cause. In Applebee v. State of New York, 127 N.E. 2d 289 (1955), the New York Court of Appeals upheld a finding by the New York Court of Claims that there was no liability against the State where a stop sign had been permitted to remain bent almost to the ground for a period of 7 weeks. That intersection in question was heavily traveled, but, as in the case at bar, had unobscured views for 600 feet. The court found that the proximate cause was the driver’s failure to look, even though the evidence showed that the driver did, in fact, slow to a stop at the intersection before proceeding to enter.

In the case at bar, it is not necessary for us to conclude that the respondent was in no degree negligent, since we find that the facts in this case clearly establishes claimant’s own negligence as the main contributory cause of her injuries.

This court has always followed the rule that contributory negligence on the part of a claimant is a bar to recovery of damages. The contributory negligence rule was carefully reconsidered and reaffirmed by the Illinois Supreme Court in Maki v. Frelk, 40 Ill.2d 193 (1968).

This rule makes it incumbent upon the claimant to prove that she did nothing to contribute to the accident. Emm and Vanda v. State, 25 C.C.R. 219 (1965).

Although claimant saw the Erwin truck coming from the north, claimant’s left, on a 4-lane highway and approaching the intersection at a speed of 50 to 60 m.p.h., she did not stop before entering the intersection. Claimant contends that since she did not see a stop sign, she assumed that the Erwin vehicle had to stop. Moreover, claimant maintains that she had the right of way by reason of her being on the right of the Erwin vehicle, and cites Ch. 95½, Sec. 165a, Ill.Rev.Stat., 1965.

Claimant further contends that the intersection was an "open” intersection because the "stop” sign was down. To support this contention, claimant relies on Spiotta v. Hamilton, 120 Ill.App.2d 387 (1970).

Counsel for both sides have argued the Spiotta case at length, and properly distinguished it from Vierke v. Sunset Valley Creamery Company, 58 Ill.App.2d 323. We find that the distinctions make Vierke the rule more applicable to the case at bar.

The Spiotta case held that a "right-of-way instruction is properly given to the intersection of two nonpreferential roads, both when signals are nonexistent or temporarily out of operation”. (Spiotta at page 394) That case involved an intersection of two nonpreferential two-laned roads, unlike the intersection here where Route 148 was a four-lane divided highway, and Old Route 13 was two lane. Further, the plaintiff in Spiotta stopped at the intersection and observed other vehicles, southbound and westbound, come up to the intersection and take turns proceeding from a dead stop. (Spiotta at page 391) In the instant case, claimant did not stop but rather sped through the intersection at 20 miles per hour on the assumption that if she didn’t have to stop, the Erwin vehicle had to. The Spiotta case, and the Vierke case distinguished therein, are dependent on the respective knowledge and expectations of the parties approaching the intersection. If there is nothing to indicate that one of the roads is preferred, then the intersection is "open” as in Spiotta. If a driver knows or should have known that one of the roads is a preferential road, as in Vierke, then the intersection is not open.

In the instant case we believe that, in the proper exercise of due care and caution for her personal safety, claimant should have seen and known that she was approaching an intersection with a preferential highway. The facts clearly indicate that this was so even in the absence of the downed stop sign. Her view of the intersection was unobstructed. There was an advance warning sign, STOP AHEAD, which she admits she did not see. There was a stop sign for the right turn lane which was visible for a distance of 125 feet back in her lane. There was also an information sign approximately 50 feet west of the intersection detailing directions to Herrin, Williamson County Airport, Field Trial Club and Marion. All of these warnings clearly indicate that she was approaching an important intersection. She also saw the Erwin truck coming towards the intersection at high speed.

Even if a vehicle has the right of way, as claimant erroneously assumed that she did, this does not relieve a driver from the duty to exercise ordinary care in approaching, entering and driving through the intersection. (Waldren v. Hardwick, 99 Ill.App.2d 36-1968) Rather, as the court stated in Conner v. McGrew, 32 Ill.App.2d 214, 217 (1961),

"... a driver [even] on a preferential highway does not have an absolute or unqualified right of way that can be asserted regardless of circumstances, distances or speed. Such a driver may not plunge blindly ahead in reliance upon an assumption that the other motorist will obey the law and yield the right of way, nor may he heedlessly proceed into obvious danger. Rather, there is a duty upon such driver to observe due care in approaching and crossing the intersection and to drive as a prudent person would to avoid a collision when the danger is discovered, or by the exercise of reasonable care, should have been discovered.” (Emphasis added)

The above rule is restated in the well known booklet, "Illinois Rules of the Road”, as follows:

'It must be understood that, in every situation, the right-of-way is something which is to be given, not taken. If the other driver is not following the rules, let him have the right-of-way even if it really belongs to you. Otherwise, you will be gambling with the lives of yourself and your passengers.” [Such gambling is negligence.]

It is well settled that a driver approaching an intersection, who fails to look as he approaches, to ascertain whether there are other cars in proximity, especially those which might have the right of way over him, is guilty of want of ordinary care and contributory negligence. (Touhey v. Yellow Cab Company, 33 Ill.App.2d 180, 185 (1962) It would be a gross anomaly to hold that claimant fulfilled the above duty when, after observing the oncoming vehicle, she plunged heedlessly ahead without again looking or making any effort to avoid the ensuing collision. The duty of the drivers approaching an intersection to avoid a collision is reciprocal. It is not discharged by a single look and an assumption of right of way.

The claimant, a teacher with high academic achievements, actively engaged in sports and a wide range of civic and social activities, more than qualifies as a prudent person. Yet her own testimony clearly establishes the fact that she was negligent on this particular occasion.

We need not comment on whether or not Milo Erwin was also negligent, as claimant contends. It would make no difference in our conclusion of this action. We find that claimant’s contributory negligence was the proximate cause of her injuries. Therefore, her claim against the respondent must be denied.

Count II of the complaint contains a claim of Billy Pyle, husband of claimant, Mildred Pyle, for the husband’s loss of consortium resulting from the injuries his wife sustained in this unfortunate accident. He seeks damages for the loss of his wife’s society, companionship, and related conjugal benefits, as well as loss of her services.

"Generally, a cause of action for loss of consortium of the wife does not exist in the husband unless the defendant [respondent] would have been liable directly to the wife for her injury occasioning the loss of consortium.” (41 Am.Jur.2d, Husband and Wife, §451-452, p. 379-380, 1968)

While the Illinois Supreme Court has not ruled on this issue, the Appellate Court on several occasions has denied recovery for loss of consortium on the grounds that the cause of action is based on the principal cause of action. See Lyons v. Midwest Transfer Company, 46 Ill.App.2d 275 (1964); Clark v. Carson Pirie Scott and Co., 340 Ill.App. 260 (1950); Tjaden v. Moses, 94 Ill.App.2d 361, 365 (1968).

We hold that claim for loss of consortium is derivative in nature and is dependent upon the right of the injured spouse to recover.

Since the claim of Mildred Pyle has been denied, it, therefore, follows that the dependent claim of her husband for loss of consortium must also be denied.

This claim is hereby denied.


author: Holderman, J.

text:
    (No. 6412
    Thomas Mooneyham, Administrator of the Estate of Ronald Scott Mooneyham, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 19, 1973.

    Dreyer, Foote & Street Associates, Attorney for Claimant.

      William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Holderman, J.

This is an action brought by Thomas Mooneyham, Administrator for the death of his son, Ronald Scott Mooneyham.

On October 25, 1972, Thomas Mooneyham, his wife, and their son, Ronald Scott Mooneyham, age 12, and several others visited Starved Rock State Park. This was the first occasion that the Mooneyhams and their children had ever been in the park. They arrived in the park about 1:00 p.m., and shortly thereafter, they prepared lunch. Lunch was concluded approximately one hour later and at that time, Ronald, age 12, Allen Tidwell, age 8, Ronald’s sister, Lucretia, age 6, and another child in the party, Boyd Potts, asked Mr. and Mrs. Mooneyham if they might walk up to the airplane ride located between the picnic area and Starved Rock.

The airplane ride was in an area visible from the picnic area where the Mooneyhams ate lunch. The children were given permission and, after being warned to be careful, left the picnic area.

After cleaning up the area and loading the car, which was some time later, the Mooneyhams and the other adults in the party started out in the direction in which the children had gone.

They were met along the way by Allen Tidwell, who came running up to them and told them that Ronald Scott Mooneyham had fallen into the Illinois River, which borders Starved Rock State Park.

It appears from the evidence that instead of going to the airplane ride, the four youngsters had visited the area between Starved Rock and Lover’s Leap.

Starved Rock is a State Park consisting of, at the time of this tragedy, approximately 1,500 acres. It is an extremely rugged area in which there are sandstone cliffs, canyons and other natural phenomena, which is the reason for the park’s existence. The sandstone bluffs have been eroded by wind and water for centuries, creating a very interesting, but also a very rugged and dangerous, area. It is bordered on the north and west side by the Illinois River. Across the Illinois River, a short distance above the sandstone formation known as Starved Rock, is a dam operated by the United States Corps of Engineers. This dam controls the Starved Rock pool which is of considerable size as it backs the water up several miles to the northeast of the dam. This pool is of considerable width, quite deep, and extends for a distance beyond the northern and eastern limits of the park. The operation of the locks can either retard or accellerate the flow of water which affects both the volume and the speed of the river below the dam.

Below the dam, the current is much swifter than it is above the dam, depending somewhat upon the position of the locks regulating the flow of water from the pool to the river.

This dam was constructed for the purpose of supplying water for the Illinois Waterway which maintains a channel of approximately 9 feet in depth.

Most of the park area is overgrown with trees, bushes, and various kinds of shrubbery, all interlaced with nature trails throughout the entire area.

Upon entering the park, you find a relatively flat area where the parking lots are located, together with the public toilets and concession stand, as well as a picnic area. East of the picnic area, bordering the south side of the Illinois River, is the formation known as Starved Rock.

A relatively short distance away from Starved Rock, which is a high sandstone bluff with three sides that are very sheer, is a similar formation known as Lover’s Leap. Between them is a small beach. All of this area borders the Illinois River, the current of which is very swift in this particular area and particularly swift if there has been a release of a large volume of water from the Starved Rock dam.

To travel from Starved Rock to Lover’s Leap, there is a main trail which curves around the bases of the two above named rock formations. Between these two formations is the small beach which is the area in which the accident occurred. It is possible to reach the beach area in question by leaving the main trail and travelling a comparatively short distance through a trail that, though unauthorized, nevertheless was used by numerous visitors.

The park does not maintain a trail to the beach area and, as a matter of fact, there is a fence, as shown by the exhibits, which at least partially blocks the area from the main trail.

Visitors, with their usual disregard for signs which have been put up in an effort to direct their travel in the park, have avoided the fence and have made it easy to go to the Beach area.

It also appears from the record that the main trails are marked with yellow dots for going and with white dots for returning.

The park is interlaced with many trails and there is evidence that there are numerous signs that read "Danger — Stay on Main Trail.”

On the beach itself, there are two signs — one saying "No Swimming or Wading” and the other "Dangerous Undertow.”

Despite this fact, according to the Park Rangers who testified, people still frequent the beach area and other areas of the park to which there are no authorized trails.

The record indicates that approximately 500,000 to 600,000 people visit the park annually for the purpose of viewing the works of nature. The entire area, due to the ruggedness, has proved very attractive to the visitors despite the apparent dangers that, of necessity, exist in an area as wild and rugged as a natural park.

It appears from the record that all four children had left the marked trails and gone to a small cove on which there was a beach. This area is located between Starved Rock itself and a similar rock formation known as Lover’s Leap and is directly on the Illinois River, a relatively short distance below the dam. Lover’s Leap is a rock formation that borders directly on the river and is of considerable height with a sheer cliff on the river’s side.

After playing around in the sand for some time, Ronald Scott Mooneyham and Allen Tidwell climbed up on the Lover’s Leap formation. After they climbed partway around the rock, Ronald fell in. Allen Tidwell ran back to his uncle and informed him of what had happened.

Exhibits, by pictures, show the area in which the climbing was done.

Michael Butler, a young man, was informed by Allen Tidwell of what had happened and this individual went to the scene where the young boy had fallen in.

He stated he could hear the boy but could not see him at that time because of the fact that the river had eroded the bottom of Lover’s Leap formation. Mr. Butler finally saw the boy and reached down to him with a long stick but the boy in the water was unable to grasp it. Butler then jumped in and was swiftly swept downstream because of the undertow. He surfaced approximately 30 feet from the point where he went in. By that time, the boy had gone under and was out of sight of Mr. Butler. Mr. Butler then got into a boat that people who were on the river had brought over after having seen the difficulty.

Mr. Butler stated that he was a good swimmer and that he had taken off some of his clothing, including his shoes, before he went into the river, but the river at that point was flowing very swiftly and it was a very difficult place in which to swim.

Claimant, in his Brief, advanced the theory that the death of Ronald Scott Mooneyham was caused by the failure of the State of Illinois to exercise reasonable care and maintenance to keep Starved Rock State Park in a safe condition. In support of this theory, his contention is that the State of Illinois had actual notice that a dangerous area existed in Starved Rock State Park.

Claimant offered some 14 exhibits dealing with accidents in the park area. These exhibits dated from 1965 to 1971.

Three of these exhibits dealt with the Starved Rock formation and the rest dealt with either the Lover’s Leap formation or the river and cove area. Some of these exhibits were admitted by the Commissioner and some were not. Several of them dealt with situations greatly similar to the present case where individuals, in complete disregard of the warning signs, attempted to climb Lover’s Leap formation and suffered various sources of injuries, some of them falling into the river and others merely falling onto the beach and sustaining injuries in that fashion. Some were caused by individuals ignoring the "No Swimming” signs and going into the water.

It is rather interesting to note that these accidents involving Lover’s Leap and the cove area, 11 in all, covered a period of 6 years, in which period of time there would have been approximately 3 million visitors to the park.

It is the contention of the claimant that these accidents were sufficient notice to the State that a dangerous area existed and that the State failed to exercise reasonable care in maintaining the park in a safe condition and that insufficient warning was given that dangerous conditions existed in the park.

It is also the contention of the claimant that this area should have been completely fenced off to prevent entrance, that decedent exercised due care for his own safety, and further that the parents were not guilty of contributory negligence, and that the law presumes that the wrongful death of a minor child results in pecuniary loss.

Numerous cases were cited in support of each position taken by the claimant.

The respondent, in its Brief, takes the position that

(1) Respondent is free from negligence because the State, not being an insurer of safety, has completely discharged its duty to the public in exercising reasonable care in the maintenance and supervision of Starved Rock State Park;
(2) Respondent is free from negligence, because the State of Illinois, not being an insurer of safety, has no duty to warn the public of an obvious danger existing off the trial of a State Park;
(3) The proximate cause of this accident was decedent’s intentional departure from the trail;
(4) Claimant has failed to sustain his burden of establishing by a preponderance of the evidence that decedent was in the exercise of due care for his own safety;
(5) Claimant’s decedent assumed the risk of injury by voluntarily exposing himself to a place of obvious danger; and
(6) Claimant is not entitled to damages.

The question then resolves itself as to whether or not an award can be made when a young child loses his life under the circumstances above described.

The State has argued that the decedent was not in the exercise of due care for his own safety. The record discloses that the unfortunate victim was a lad of better than ordinary in ,elligence and ability, his school record was good, and that he was normal or above normal in every respect intellectually.

This Court has previously held that the State of Illinois, in maintaining a nature park, is not obligated to warn of every dangerous place in it.

In the Handbook of Illinois Evidence, Page 90, a statement is made as follows: "However, on the question whether the evidence is admissible to prove the dangerous nature of the situation itself, considerable uncertainty is found.” There are cases cited both for and against the admission of such evidence and Wigmore takes the position that the evidence of previous accidents to prove the notice of a dangerous condition should be admitted.

In the case of Hansen vs. State of Illinois, 24 CCR, Page 102, the accident was caused when the individual injured stepped off the beaten path for a very short distance. The dirt path crumbled and the individual fell. There was not any notice or warning sign. The Court, in passing upon this situation, made the following statement: "Obviously the State, in maintaining a nature park, is not obligated to warn of every dangerous place within it. It is, however, obligated to warn of a danger that exists along a trail, which it knows is being used by the public, who would have no knowledge of the existing danger.”

In the case of Murray vs. State of Illinois, 24 CCR, Page 399, claimant fell into a hole approximately three feet from the path. There was no warning sign and the danger was hidden. There was knowledge by the State that such conditions existed and there was no way that the general public would have knowledge of the area in question.

In the case of Stedman vs. State, 22 CCR, Page 446, the accident happened at Starved Rock. In this case, the claimant left the path, moved to the edge of the canyon and fell. Negligence was charged by the failure to erect signs and guard rails and in failing to provide lighting. The path was fifteen feet from the place of the fall. On Page 449 in said case, the Court made the following observation: "To require the maintenance of signs, rails and lights along the many miles of pathways would place a burden upon respondent, which no reasonable man would require.” Also, in the same case, same page, "Adult patrons of Starved Rock Park certainly know the character of the park’s terrain, and respondent is entitled to take that into consideration in determining when, where and how safeguards and warning should be installed.”

In this case, the Court held that it was not the lack of guard rails, signs, etc. that was the cause of the accident but the intentional departure from the path by the claimant in the night time.

The Court further stated that to hold otherwise would place an unwarranted burden approaching that of an insurer upon the State of Illinois, and would, in effect, ignore the requirement that a claimant must, in order to recover, be in the exercise of due care and caution for his own safety.

In the case of Finn vs. State of Illinois, 24 CCR, Page 177, in passing upon a claim where an individual claimed to have injured himself by stepping into a depressed area, the Court made the following statement: "It is our opinion that the State cannot be held responsible for every depressed area or hole into which someone might step and turn their ankle, or otherwise injure themselves throughout the State Parks. To require constant inspection in a park of some size, where the State maintains several thousand acres for the benefit of the public, would place an undue hardship and extraordinary burden on the State, by and through its agents and servants.”

While it is true that respondent is under the duty to exercise reasonable care in maintaining its parks, it is likewise the law that respondent is not an insurer against accidents occurring to patrons while using the park facilities. Kamin v. State of Illinois, 21 CCR, Page 467.

The Court, in its many cases involving similar situations in the park systems of the State of Illinois, has made a distinction of the dangers that are obvious and those that are hidden or man-made. The Court has uniformly held that where the dangers are manmade or hidden and are not obvious to the public, the State is usually liable.

The Court has also held that where the danger is not one created by man or the park system but one created by nature and is obvious, the State is not responsible.

Volume 33A of Illinois Law & Practice — Section 114 — Injury in State Parks — makes the following statement.

"With respect to liability in tort under the Court of Claims Act the State owes a duty to the public to exercise reasonable care in establishing, maintaining and supervising its parks, and it has a duty to warn of a danger that exists along a nature trail which could not be discovered by the public.” Citing 24 Ill.Ct.Cl. 1 Martin vs. State.

On the other hand, I.L. & P. states that the State is not obligated to warn of every dangerous place in a park as, it points out, the invitation to use the parks is not absolute but an invitation to use particular facilities in the manner in which, and for the purpose for which, they were designed and intended. Citing Pulizzano vs. State, 22 Ill. Ct. Cl. 234.

In the instant case, the State had knowledge of the short cut path used by Ronald to the cove and had knowledge of the use of this path by others for quite some time. It also had knowledge that numerous people visited the beach between Starved Rock and Lover’s Leap.

It can thus be convincingly reasoned that, having taken no precautions against visitors using the short cut to the cove, nor against visitors making use of the cove, that there was an implied invitation extended to make use of this unauthorized path and cove area.

However, the question remains, notwithstanding the negligence of the State, whether such negligence was the proximate cause of the accident which followed.

Proximate cause is defined as that cause which, in natural or probable sequence, produced the injury complained of. See IPI Sec. 15.01 at page 93.

Implied permission to use the beach and to make use of the short cut path does not carry with it implied permission to climb the rock formation which this young lad did. See DuMond vs. City of Mattoon, 60 Ill.App.2d, 83, 207 N.E. 2d 320.

In climbing the rock formation Ronald did so without the express or implied knowledge or permission of the State.

Negligence, if any, of the State in permitting persons to visit the cove cannot be extended to cover injuries received by someone who goes beyond this implied invitation. There was no proximate cause between what the State failed to do and the injuries sustained in the present case. Had the drowning occurred in a manner attributable solely to the use of the beach, the result could have very easily been different.

It is this Court’s opinion that all unauthorized trails to the cove, including the one used by this lad, should have been restricted in a reasonable manner, but the State’s failure to do so was not the proximate cause of the accident.

It is the opinion of this Court that the natural dangers existing in said park that caused the unfortunate tragedy, and particularly the steepness of the cliff and the swiftness of the Illinois River, are certainly obvious dangers and, with the exception of the dam, were not man-made. Clearly a river such as the Illinois River is an obvious danger and one that is not under the control of the State. The cliff upon which the victim was climbing was one created by nature and is one of the reasons that the park exists, and while it is undoubtedly true that cliffs of this nature are a challenge to young people and adults, that does not create a liability on the part of the State since it is an obvious danger and one that is assumed by visitors to the park. To make the park completely safe for every visitor, regardless of age, would result in the absolute closing of the park or confine visitors to a fenced-in area which would undoubtedly cause the park to lose its present attraction.

It is the opinion of the Court that the tragedy that occurred was not the proximate result of any negligence on the part of the State in maintaining its park.

The Court holds, therefore, that this claim is hereby denied.


text:
    (No. 73-CC-182
    Chicago Tribune Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 3, 1973.

    Chicago Tribune Company, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-100
    J. S. Latta & Son, Inc., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed December 3, 1973.

    J. S. Latta & Son, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-101
    Consolidated Oil Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 3, 1973.

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


text:
    (No. 74-CC-109
    Interroyal Corporation, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed December 3, 1973.

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


text:
    (No. 74-CC-137
    Dallas Academy, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 3, 1973.

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


text:
    (No. 74-CC-138
    Globe Glass & Trim Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 3, 1973.

    Globe Glass & Trim Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-139
    Globe Glass & Trim Company, Claimant vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 3, 1973.

    Globe Glass & Trim Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-143
    Arnie Yusim Chevrolet, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 3, 1973.

    Arnie Yusim Chevrolet, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-163
    Kenneth Moy, Claimant, vs. State of Illinois, Fair Employment Practices Commission, Respondent.

      Opinion filed December 3, 1973.

    Kenneth Moy, Claimant, pro se.

      William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-182
    Robert J. Rakers, Claimant, vs. State of Illinois, Office of the Commission of Banks and Trust Companies, Respondent.

      Opinion filed December 3, 1973.

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


text:
    (No. 5751
    Victoria Severe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 3, 1973.

    Steinberg and Burtker, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Burks, J.

In this action, claimant seeks damages for personal injuries she allegedly sustained when she tripped in a hole in the pavement located approximately three feet south of the curb at the northeast corner of the intersection of North Avenue and Wolf Road in the Village of Northlake. Claimant’s accidental fall occurred at approximately 4:00 p.m. on Saturday, July 12, 1969.

Claimant testified that she and a companion, Agnes Davis, arrived at this location by a bus a few minutes before 4:00 p.m. on the day of her accident. They disembarked from the bus in the immediate vicinity of the hole in question. Claimant said that neither she nor Mrs. Davis had ever been in this area prior to the date of her accident. Mrs. Davis saw the hole in question as she got off of the bus. Claimant testified that, prior to her fall, she saw a hole next to the hole in which she tripped. Claimant started to cross North Avenue, she said, from a broken curb which she saw two steps from the hole.

Claimant testified that, as she began to cross the road, the stop light suddenly changed from green to red. Claimant then backed towards the curb rather than turning to retrace her steps, even though she knew that a hole and broken curb were behind her. As claimant backed to the curb her foot went into a hole causing her to fall. According to the claimant, the hole was less than a foot long and "not very wide”. It was a sunny day. Claimant’s vision was clear and unobstructed at all times. It also appears from the record that claimant did not attempt to cross North Avenue in a crosswalk.

Claimant was unemployed at the time of the accident. Her total medical expenses and damages were $493.10 of which $376.60 was paid by insurance. Her verified complaint asks for damages against the respondent in the amount of $25,000.

The court feels that this claim must be denied for two reasons: [1] claimant failed to prove negligence on the part of the respondent; and [2] failed to prove that she was free from contributory negligence.

[1] The legal principle that the state is not an insurer of those traveling on its highways is well settled. Weygandt v. State of Illinois, 22 C.C.R. 478; Kavalauskas v. State of Illinois, 24 C.C.R. 361; LaBoda, et al. v. State of Illinois, 24 C.C.R. 172; Arnett v. City of Roodhouse, 330 Ill.App. 524; Davis v. City of Chicago, 8 Ill.App.3d 94 (1972).

The record in the case at bar does not support a finding that the state was negligent in failing to repair this particular defect in its pavement within a reasonable time after having actual or constructive notice of its existence.

We find nothing in the record here to indicate just how long the hole in the pavement had existed prior to claimant’s accident. Claimant refers to photographic exhibits which seem to indicate that the hole in the pavement had been there for some time before her accident, and cites Visco v. State of Illinois, 21 C.C.R. 480, in support of her contention that, if the duration of the defect exceeded one week, the State had constructive notice and was, therefore, negligent. This conclusion of fact and law is not substantiated by the evidence. In Visco we ruled that the state had constructive notice because of the enormous size of the hole involved in that case, plus the independent testimony of two disinterested witnesses who stated that the hole had existed for at least one week prior to the accident. The hole in the Visco case measured 18" wide, 30" long and. 10" deep. In the instant cause, claimant’s own testimony revealed that the hole was less than a foot long and "not very wide”. Hence, we find that the authority of Visco does not substantiate claimant’s contention that constructive notice can be proven by photographs or mere speculation, unsupported by factual evidence. Nor did we hold in Visco that the state’s failure to repair any type of hole in the road within one week of constructive notice constitutes negligence per se. As to what constitutes reasonable notice of a serious highway defect, (there a downed stop sign) see our lengthy discussion in Pyle v. State, C.C. No. 5343 filed November 18, 1973.

[2] A sufficient reason for denying recovery to claimant is that she was not free of contributory negligence. Claimant testified that she knew of the existence of a hole and broken curb a few minutes prior to her fall. She further stated that, as she crossed the street, the stop light changed suddenly. She then backed toward the curb, a place of known danger, rather than turn around to see where she was walking. Claimant testified that her vision was at all times clear and unobstructed.

To approach a place of known danger without care commensurate with such danger is contributory negligence. Doolittle v. State of Illinois, 21 C.C.R 113; Mount v. State of Illinois, 20 C.C.R 268. Claimant calls the court’s attention to its decision in Courtney v. State of Illinois, 19 C.C.R. 210, as supporting the proposition that a pedestrian using a sidewalk or roadway need not keep his eyes on the pavement to search out defects and dangers. The Courtney decision is clearly distinguished from the instant cause in that it involved a child of the age of nine who fell as a result of a defect in a sidewalk. The opinion in that case strictly limited its application to sidewalk defects, and not roadways, as claimant contends. Further, in Hammer v. State of Illinois, 22 C.C.R. 221, the court discussed the Courtney decision at page 225:

"While it is true that claimant could assume that a sidewalk was in a reasonably safe condition, and was not required to search out hidden defects, the fact remains that, if claimant was actually aware of a dangerous condition, she could no longer indulge in a presumption, or assume that the walk was in a reasonably safe condition.”

In Hammer this court denied recovery to the pedestrian who stepped into a large hole located in a crosswalk because the claimant knew of the hole prior to her fall. As we said at page 226: "Her indifference to a known danger negates her claim to freedom from contributory negligence”. See also, Graham v. City of Rockford, 238 Ill. 214; Callen v. State of Illinois, 23 C.C.R. 11; Thriege v. State of Illinois, 24 C.C.R. 470. The court finds that the facts here reveal that claimant has not proved that she exercised due care and caution. Contributory negligence, which under Illinois law, bars any recovery for injuries sustained. Maki v. Frelk (1968) 40 Ill.2d 193.

This claim is hereby denied.


text:
    (No. 6599
    Illinois Bell Telephone Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 3, 1973.

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


text:
    (No. 5809
    Frank M. Ward, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 4, 1973.

    Graham, Meyer, Young, Welsch and Maton, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

Claimant here seeks to recover the sum of $4,177.00, alleged to be the amount of an involuntary overpayment of fines and costs imposed upon him for two violations of "The Illinois Vehicle Code”, i.e., being overweight on gross and violating a permit. The overpayment resulted from the court having set a bond which was some $4,177.00 in excess of claimant’s fines and costs as finally determined by the Circuit Court in Vermilion County. Said bond was forfeited in an ex-parte proceeding, held without notice to claimant.

When claimant made demand upon the Circuit Clerk for a refund of the difference, he learned that the full amount of his $5,200.00 bond, less $25.00 costs, had been forwarded to the State Treasurer through the Illinois Department of Public Safety.

The amount of $5,175.00 was duly acknowledged as having been received by the Illinois State Police and also by the Office of the Treasurer of the State of Illinois, Adlai E. Stevenson III. Demand for the return of $4,177.00 was made upon Adlai Stevenson III in his capacity as Treasurer of the State of Illinois. This demand was refused because no statute authorized the refund.

Except for a difference of $20.00 in the amount allegedly due the claimant, the facts are not in dispute. The facts are stated in a stipulation, filed April 3, 1973, in which the parties hereto agree and stipulate as follows:

1. That on or about October 15, 1968, claimant, Frank M. Ward, was operating a motor vehicle along and upon Interstate Route 74 near Danville, Illinois, and within Vermilion County, Illinois, and that said claimant was arrested by Trooper John Matulis of the Illinois State Police and that the claimant was charged with violation of Chapter 95½, Paragraph 228 (b) of the Illinois Revised Statutes: Overweight on Gross, Case No. W 10-01103, and with violation of Section 230 of Chapter 95½ of the Illinois Revised Statutes, Case No. 10-091326.

2. That the claimant, Frank M. Ward, in order to secure his release from the custody of the Sheriff of Vermilion County, Illinois, deposited the sum of Five Thousand Two Hundred and No/100 Dollars, ($5,200.00) as bail bond in the above-named case with the Circuit Clerk of Vermilion County, Illinois, a copy of the receipt of said Five Thousand Two Hundred and No/100 Dollars ($5,200.00), being attached hereto as Exhibit "A”.

3. That said Frank M. Ward was, at the time of the said arrest, an employee of Krug Excavating Company, 1185 Central Park Avenue, Chicago, Illinois.

4. That the said Five Thousand Two Hundred and No/100 Dollars ($5,200.00) was furnished to Frank M. Ward by said Krug Excavating Company for the purpose of paying bail bond for said Frank M. Ward and that the named claimant, Frank M. Ward, has no interest in the proceeds from the said Five Thousand Two Hundred and No/100 Dollars ($5,200.00) paid over to the Illinois State Treasurer, and that the sole person having interest therein is the said Krug Excavating Company.

5. On December 12, 1968, a hearing was held in regard to Case No. W10-01103 and Case No. 10-091326 in the Magistrate Division of the Circuit Court for the Fifth Judicial Circuit of Illinois, Vermilion County Dan-ville, Illinois; claimant, Frank M. Ward, not being present in person or by counsel, on the motion of the State’s Attorney, claimant’s bond in the amount of Five Thousand Two Hundred and No/100 Dollars, ($5,200.00), was forfeited.

6. On March 13, 1969, a heáring was held in the Magistrate Division for the Fifth Judicial Circuit, Vermilion County, Illinois Magistrate Lawrence T. Allen presided at said hearing and Frank M. Ward was represented by his attorneys, Graham, Meyer, Young, Welsch & Maton, and the said Lawrence T. Allen, Magistrate for the Fifth Judicial Circuit, entered the order attached hereto and marked as Exhibit "B” and incorporated herein as if further set forth.

7. On June 11, 1969, a hearing was had in the Magistrate Division of the Fifth Judicial Circuit, Vermilion County, Illinois. Magistrate Lawrence T. Allen presided at that hearing. Claimant, Frank M. Ward, appeared in his proper person and by his attorneys, Graham, Meyer, Young, Welsch & Maton, and the people of the State of Illinois being represented by Larry P. Cramer, Assistant State’s Attorney, and sworn evidence being heard, Magistrate Lawrence T. Allen entered the orders attached hereto as Exhibits "C” and "D” and made a part hereof.

8. Frank M. Ward, through his attorneys, Graham, Meyer, Young, Welsch & Maton, has demanded the return of Four Thousand One Hundred Seventy-Seven and no/100 Dollars, ($4,177.00), from Gerald R. Block, the Circuit Clerk of Vermilion County, Illinois.

9. That Gerald R. Block, as Circuit Clerk for Vermilion County, Illinois has transferred the aforesaid Five Thousand and Two Hundred Dollars ($5,200.00) less costs of Twenty-Five Dollars ($25.00) to the Illinois State Highway Police, as set forth in Exhibits "E” and "F” attached hereto and made a part hereof.

10. That said Illinois State Police, Division of the Department of Public Safety (now Department of Law Enforcement) endorsed said payment to the order of Adlai E. Stevenson III. State Treasurer of Illinois, as set forth in Exhibit "G” attached hereto and made a part hereof.

11. That the State Treasurer of the State of Illinois still retains said funds and refuses to turn said funds over to the claimant, Frank M. Ward.

12. That the claimant, Frank M. Ward, through his attorneys, Graham, Meyer, Young, Welsch & Maton, has demanded the above-mentioned Four Thousand One Hundred Seventy-Seven Dollars ($4,177.00) of Adlai Stevenson III in his capacity as Treasurer of the State of Illinois, and that said Adlai Stevenson III, in his capacity as Treasurer of the State of Illinois, refused to refund the said Four Thousand One Hundred Seventy-Seven and No/100 Dollars ($4,177.00), to the claimant.

13. That no assignment or transfer of the above-mentioned claim for Four Thousand One Hundred Seventy-Seven and No/100 Dollars, ($4,177.00), or any part thereof or interest therein, has been made by the claimant, Frank M. Ward, who has filed this claim on behalf of said Krug Excavating Company, the true party in interest.

14. That this stipulation and the documents attached hereto will constitute the entire record in this matter.

15. That both parties waive right to a hearing and agree that the legal questions involved will be submitted to the Court by briefs from each of the parties. (End of the stipulation)

The above undisputed facts are almost identical, and in all significant respects are identical, to the facts in Bongi Cartage Inc., et al., v. State, 24 C.C.R. 354. Respondent concedes that Bongi Cartage is the most recent and authoritative case on the points involved here and agrees with the result in Bongi granting an award to the claimant notwithstanding the fact that there was no statute specifically authorizing recovery.

Both Bongi and the case at bar involved alleged violations of the Uniform Motor Vehicle Code for gross overweight, as well as other violations having standard bonds. In both cases, an ex parte judgment was entered; the claimant’s bond was forfeited and the money transferred to the State Treasurer, less that portion retained as costs. Subsequently counsel in each case successfully prosecuted a Motion to Vacate the bond forfeiture; the causes were reinstated; and the trial court ordered that the amount remaining in the bond be returned to the claimant.

This court did award a full recovery to the claimants in Bongi on the equitable grounds that: (1) because the payment to the court was involuntary; and (2) because the transfer of funds was illegal; and (3) because claimants had acted to protect their rights promptly after learning of the wrongful transfer.

Applying the 3 tests in Bongi to the case at bar, we find as follows:

[1] Claimant here did in fact pay the cash bond, in lieu of the fine, in order to avoid imprisonment. It should, therefore, be perfectly clear that the bond was posted involuntarily. The general rule in Illinois, which we followed in Bongi, is restated as follows in I.L.P. Fines, Forfeitures and Penalties, §11:

"It is a general principle that fines involuntarily paid may in a proper case be recovered back, but that fines voluntarily paid cannot be recovered.”

This court also followed the above rule to deny a claim in Smith v. State, 21 C.C.R. 459 because there, unlike the case at bar, the fine was paid voluntarily.

[2] Was the transfer of the bond funds illegal as contemplated by the second test applied in Bongi? We observe from the record that the court in Vermilion County in fact found that the ex parte proceeding, in which the bond was forfeited, was held in violation of Ch. 110A, Sec. 556, Ill.Rev.Stat., 1967; that the forfeiture was void ab initio; and, therefore, the payment of the balance of the bond money to the State was an illegal transfer of funds.

[3] As to the third element in the Bongi decision, respondent concedes in its brief that the claimant acted promptly in attempting to protect his rights. Thus, the defense of laches would not lie.

In cases of this kind we must always consider the question of this court’s jurisdiction in view gf the type of action involved. We believe that this court properly accepted and exercised jurisdiction in both the Smith and the Bongi cases cited above. Again we refer to I.L.P. Fines, Forfeiture and Penalties, §11 in which it is stated:

“The General Assembly has power to authorize the Courts to relieve against forfeitures even after judgment.” People v. Evanuk, 1926, 150 N.E., 634, 320 Ill., 336, 43 ALR 1230.

Since the General Assembly has the power to authorize the courts to relieve against forfeitures, it follows that this court, having been given exclusive jurisdiction to hear claims against the State based upon statutes and laws, claimant would have no other remedy, in law or equity, except to file claim in this court.

As to the type of action involved here, we find in Vol. 36A of Corpus Juris Secundum, P.458, the following:

"Actions. Indebitatus Assumpsit. For money had and received, it has been held, is a proper form of action against the government or a county for the recovery back of a fine illegally collected. So, also, it has been held that an action for money had and received is the proper form of action to recover from a Justice of the Peace a fine illegally imposed upon him.”

Among the cases cited in the footnotes to support these statements is Devlin v. U.S., 12 U.S. Court of Claims, 266.

Respondent concedes in its brief that the the order of the Circuit Court forfeiting claimant’s bond, being void ab initio, gives the State no legal right to retain the money of which it thus became possessed; that claimant’s action was appropriately brought in this court; and that claimant is equitably and legally entitled to an award.

Respondent merely finds a slight discrepancy in the amount to which claimant is entitled, and we accept respondent’s calculations as accurate on this point.

As set out earlier, the claimant was fined in the sum of $903.00 for the operation of an overloaded vehicle on a public highway and was also assessed $10.00 costs for this violation. He was also fined $100.00 plus $5.00 costs, for operating in violation of permits issued by the Department of Public Works and Buildings. These fines and costs total $1,018.00. Claimant admits that this amount should properly be deducted from his original bond of $5,200. However, there was a further cost of $25 deducted by the Circuit Court Clerk which was never received by the State. Therefore, it appears to the court that the sum of $1,018 in fines and costs should be deducted from the $5,175.00 actually received by the State, leaving a balance of $4,157.00 due the claimant.

Claimant is hereby awarded the sum of $4,175.00 as a refund of his overpayment of penalties.


text:
    (No. 5436
    Central Cemetery Company of Illinois, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1973.

    McDonald, Schmidt and Baker, Attorney for Claimant.
    William J. Scott, Attorney General; Etta Cole, Assistant Attorney General, for Respondent.
   Burks, J.

This claim, sounding in tort, is for the cost of repairs to claimant’s steel cyclone fence, allegedly damaged by agents of the respondent during the course of snow removal.

Claimant is the owner and operator of Memorial Park Cemetery located in the Village of Skokie and fronting, in part, on the public highway known as Golf Road.

During the emergency created by the great blizzard which occurred on January 27, 1967, in the Chicago area, it was necessary for the Illinois Division of Highways to employ labor and equipment from the State of Wisconsin’s Highway Commission. Respondent stipulated that it employed agents of Wisconsin Highway Commission to remove snow from the highway that is adjacent to claimant’s premises on the north side of Golf Road in Skokie.

Claimant maintains a steel cyclone fence around its cemetery property, including the fence along the north side of Golf Road. In attempting to clear snow from the Golf Road highway shortly after the great blizzard, respondent’s agents using endloaders, lifted the snow over claimant’s fence onto claimant’s property. In so doing, they seriously damaged claimant’s fence along the north side of Golf Road east of Skokie Boulevard.

Claimant was obliged to replace its damaged fence and did cause said damaged fence to be replaced by the United States Steel Corporation Cyclone Fence Division at a cost of $1,310. The replaced fence was also painted by an employee of the claimant at a labor cost of $250 plus $50 for painting materials. Claimant asks for damages in the sum of $1,610.

The only testimony in the record bearing on respondent’s negligence is contained in the deposition of Louis Plowmin, claimant’s vice-president and general manager. The pertinent portions of Mr. Plowmin’s testimony is abstracted as follows:

"Well, we had the big snowstorm, and they came in to move the snow from Golf Road; they had these end-loaders and they tried to put the snow over into the cemetery, which they had no right to do. They had no permission from us to do it. Well, they bent the fence down and tore it up. I saw them trying to put the snow over the fence. They covered the fence up; they didn’t know where the fence was at, and they just destroyed it. I told them that they were tearing the fence down. I could see what they were doing. They wouldn’t even talk to me. They just kept on going. I called the State Highway Department and talked to Mr. Mierzychie. He told me that he did have charge of them and that they "were hired from the State of Wisconsin. I told him what had happened. He said, 'wait until the snow melts down now so we can see what the damage is and we’ll take care of it’. Then he told me to go ahead and have it done. I said, 'No, we don’t do it that way. You have it done’. And the next time I talked to him he said he wasn’t interested; he gave me another phone number to call.”

Claimant’s 3 exhibits, attached to the deposition, clearly show the damage done to claimant’s fence. We find that claimant has made a prima facie case of negligence against the respondent; that no rebuttal testimony or evidence was offered by the respondent; and that claimant has proved its case as to the negligence of the respondent by a preponderance of the evidence. Our conclusion is amply supported by the authority of Henderson v. State, 24 C.C.R. 35, cited in claimant’s brief.

There is no issue of contributory negligence in this matter.

The only question remaining is the amount of claimant’s damages. Respondent stipulated that the claimant paid $1,310 for the United States Steel Corporation, Cyclone Division, for the replacement of the damaged fence and $50 for the necessary materials for painting it. Mr Louis Plowmin testified that the fence was approximately two years old at the time of the damaging occurrence, and that "it was just like a new fence”. He also testified that the replaced fence was painted by an employee, and that the cost of labor for painting the fence was $250. The evidence supports our finding that the amount claimed for this labor is reasonable and should be included in claimant’s award. This is supported by our ruling in Badger Petroleum Co. v. State, 24 C.C.R. 117, cited in claimant’s brief.

We find that the evidence of damages presented to the court justifies an award of $1,610 to the claimant.

Claimant is hereby awarded the sum of $1,610.00.


text:
    (No. 73-CC-208
    Horace D. Thomas, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed December 12, 1973.

    Horace D. Thomas, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-115
    Treck Photographic, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed December 12, 1973.

    Victor A. Wallace, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-121
    Alter & Sons, Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 12, 1973.

    Alter & Sons, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-141
    Decatur Ambulance Service, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 12, 1973.

    Decatur Ambulance Service, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-153
    Kankakee Industrial Supply Co., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed December 12, 1973.

    Kankakee Industrial Supply Co, Claimant, pro se.

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


text:
    (No. 74-CC-155
    Young Metal Products, Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 12, 1973.

    Young Metal Products, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-159
    Memorial Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 12, 1973.

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


text:
    (No. 73-CC-415
    Herbert Arnold, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed December 17, 1963.

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


text:
    (No. 74-CC-13
    Raymond G. Halvorson, M.D., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed December 17, 1973.

    Raymond G. Halvorson, M.D., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-86
    Frank B. Hall & Co., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed December 17, 1973.

    Frank B. Hall & Co., Claimant, pro se.

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


text:
    (No. 74-CC-87
    Frank B. Hall & Co., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed December 17, 1973.

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


text:
    (No. 74-CC-88
    Richard M. Terry, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 17, 1973.

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


text:
    (No. 74-CC-112
    Pfizer Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 17, 1973.

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


text:
    (No. 74-CC-126
    Aero Mayflower Transit Co., Inc., Claimant, vs. State of Illinois, Bureau of the Budget, Respondent.

      Opinion filed December 17, 1973.

    Aero Mayflower Transit Co., Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-140
    Dr. Nikos Panacos, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 17, 1973.

    Dr. Nikos Panacos, Claimant, pro se.

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