text:
    (No. 4588
    Charles Baron, Inc., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1955.

      Supplemental Opinion filed February 25, 1955.

    Arvey, Hodes and Mantynband, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

In the complaint filed on behalf of claimant, Charles Baron, Inc., it is alleged that at various and sundry times, namely, on August 23, 1951, December 15, 1951, and May 19, 1952, claimant, at the special instance and request of respondent’s agent, the Department of Revenue, performed services and furnished materials to respondent; and that such materials and services so performed consisted of repairs and servicing of automobiles owned and operated by the State of Illinois, Department of Revenue. Attached to the complaint are the following exhibits:

Exhibit A — Copy of invoice No. 19715 from claimant directed to the State of Illinois, Department of Revenue, 160 North LaSalle Street, Chicago, Illinois, dated August 23, 1951, apparently representing repair order for servicing an automobile bearing license No. 292-205. The invoice reflects a charge for such services in the amount of $12.58.

Exhibit B — Copy of Invoice No. 24679 from claimant directed to the State of Illinois, Department of Revenue, dated August 29, 1951, apparently representing a repair order for the purchase and installation of seat covers and small adjustments to a 1951 Ford automobile, license No. 292-208. The invoice reflects a charge for such services and materials in the amount of $31.20, and further reflects that they were received by one T. J. Brennon.

Exhibit C — A copy of invoice No. 28360 from, claimant directed to the State of Illinois, 160 North LaSalle Street, Chicago, Illinois, said invoice reflecting the purchase and installation of a set of skid chains upon a 1951 automobile of an unnamed make, bearing license No. M 10484, said services and materials being apparently receipted for by one I. Weil. The invoice reflects a charge of $11.50.

Exhibit D — Copy of invoice No. 36223 from claimant directed to the State of Illinois, 160 North LaSalle Street, Chicago, Illinois, dated May 19, 1952, which invoice was apparently an order for repairs to a 1951 Chevrolet automobile, bearing license No. M 12030. The invoice reflected a charge of $78.15 for such repairs. Exhibit D also includes a second invoice for additional repairs to the said 1951 Chevrolet automobile in the sum of $273.28.

Claimant also attaches to the complaint as exhibit E a photostatic copy of a letter, dated October 19, 1953, upon office stationery of the Department of Revenue, signed “Richard J. Lyons”, advising that the above referred to invoices were being returned due to the fact that the expenditures were incurred prior to June 30, 1953, and were submitted too late for payment from the appropriations for the 67th biennium. It further suggested that claimant file a claim in the Court of Claims, and stated that the writer of the letter felt that such claim would be given favorable consideration.

The complaint further alleged that on various occasions prior to June 30, 1953 invoices were submitted by claimant to the Department of Revenue promptly after the rendering of the services referred to in said invoices. The complaint prays judgment in the amount <of- $406:41, representing the total amount allegedly due claimant by respondent for the services rendered and materials furnished, as shown by the exhibits referred to above.

Upon motion of respondent, so much of claimant’s complaint as was based upon invoices Nos. 19715 and 24679, being exhibits A and B, respectively, referred to .above, was stricken by order of this Court, dated September 24, 1954, thus leaving a total amount involved herein of $362.93, as reflected by exhibits C and D referred to above.

Respondent failed to file an answer to the complaint, and, therefore, Rule 11 of this Court is applicable. It is, therefore, considered that a general denial of the facts set forth in the complaint is hereby filed.

Claimant and respondent on October 26, 1954 entered into and filed a stipulation in this cause, which stipulation provided that the Court may proceed to dispose of the case upon the record, which consists of pleadings, Departmental Report, and the Supplemental Departmental Report filed herein. The stipulation further agreed as follows:

“That claimant’s exhibit C, work order No. 28360, in the total amount of $11.50, was authorized by I. Weil, whose signature is approved as a Department employee in paragraph 2 of respondent’s Supplemental Departmental Report; and
That claimant’s exhibit D, work orders Nos. 36223 and 36222, in the total amount of $351.43, constitute charges for repair work on vehicle bearing license No. M 12030, which number was assigned to the Department of Revenue according to information set forth in paragraph 6 of respondent's Departmental Report.”

The stipulation further provided that the matters and things contained therein were intended solely as “a stipulation of the facts, or some of them” relating to the claim involved herein, and that said stipulation was executed “for the purpose of avoiding the necessity of taking evidence with reference to such facts”. The stipulation further provided that if through inadvertence, or otherwise, conclusions were included therein, they were not intended to be binding, either on the parties or on the Court.

As stated in the stipulation referred to above, the only other facts contained in the record before the Court-are those contained in the Departmental and Supplemental Departmental Reports filed on behalf of respondent.

The only relevant and material facts appearing from the Departmental and Supplemental Departmental Reports not contained in the stipulation are these:

1. License No. M 10484, appearing upon claimant’s exhibit 0, was assigned to the Department of Revenue.

2. Mr. C. V. Buckley, Executive Assistant in the Chicago office of the Department of Revenue, had authority to authorize repair work on automobiles assigned to the Department.

3. It was customary for the office of the Department of Revenue to issue a written authorization for such repairs. However, in many instances Mr. Buckley made these approvals verbally.

4. Mr. C. V. Buckley left state service on February 7, 1953, and did not prior thereto present the invoices to the general office of the Department of Revenue for payment.

5. The original invoices might have been submitted to the Chicago office or to the employee operating the automobile. However, they were not filed by the Chicago office with the general office at Springfield, and approved for payment.

6. The invoices, which were submitted by claimant showing an unpaid balance as of June 30, 1953, were returned to claimant on October 19, 1953, for the reason that said invoices were incomplete in certain particulars, including the fact that there was no signature on the work order indicating who had authorized the repairs, or information sufficient to identify the automobiles as belonging to the Department.

It is noted that the invoices marked exhibit D, which indicate a considerable amount of repair to one of the vehicles involved, do not bear the signature of anyone purporting to represent the State of Illinois or the Department of Revenue. The type of repairs shown thereon indicate that this particular vehicle had been involved in an accident.

In order for claimant to establish a claim against respondent, it is essential for the facts to show that services were performed, and materials furnished upon authority of someone duly authorized to make such a purchase; or it must appear without question that the services and materials were actually received by the Department of Revenue, and were purchased in the regular and legal course of its operations. Butler Brothers, A Corporation, vs. State of Illinois, 9 C.C.R. 243.

The Court realizes that the expense involved in presenting evidence on small claims is sometimes out of proportion to the amount involved, but, nevertheless, we must be furnished with a record containing sufficient evidence or stipulated facts to prove an amount owing by the State of Illinois before a claim will be allowed. We cannot apply one rule in cases involving small claims, and another rule in cases involving large claims.

The record in this case contains no evidence that the services were performed on a state automobile upon proper authorization in the regular and legal course of the Department’s operation, nor does the record before us establish that the services or materials were furnished to and performed upon an automobile owned by the state. The only evidence as to the identity of the automobiles consists of an acknowledgment by respondent that the license numbers noted on exhibits C and D were assigned to the Department.

In the absence of any evidence or further stipulation of facts, this claim cannot be allowed. In the event further evidence or stipulated facts is made available to the Court by either claimant or respondent within thirty days of this date, the Court "will consider such evidence or stipulated facts, in addition to the record as it now stands. If no further evidence or stipulated facts is presented, this claim will be denied.

Supplemental Opinion.

This cause comes on for further hearing upon the joint motion of claimant and respondent that this Court consider the additional facts and stipulation of the parties, said facts and stipulation being submitted concurrently with the motion, and within the time allowed by our opinion rendered on January 11, 1955.

The stipulation and additional facts presented by the parties are as follows:

'“Stipulation
It is hereby stipulated by and between claimant, Charles Baron, Inc., An Illinois Corporation, hy Arvey, Hodes and Mantynhand, its attorneys, and the respondent, State of Illinois, by Latham Castle, Attorney General of the State of Illinois, its attorney:
1. That the affidavit of Richard J. Lyons, Director of Revenue of the State of Illinois, attached hereto, marked exhibit A and made a part hereof, be included in the record in this case.
2. That this case be reconsidered taking into consideration the additional evidence presented herewith, in accordance with the opinion of this Court, dated January 11, 1955, which provides that: ‘In the event further evidence or stipulated facts is made available to the Court by either claimant or repondent within 30 days of this date, the Court will consider such evidence or stipulated facts in addition to the record as it now stands.' ”
“Affidavit
I, Richard J. Lyons, being first duly sworn on oath depose and say as follows:
1. I am the Director of the Department of Revenue of the State of Illinois.
2. Upon being informed of the opinion of the Court of Claims of the State of Illinois in the case of Charles Baron, Inc. vs. State of Illinois, No. 4588, filed January 11, 1955, I endeavored to make a further study and investigation of the facts therein presented. As a result of the investigation, I have determined the following:
(a) That with respect to exhibit C, invoice No. 28360, the services and materials therein stated were actually received by the Department of Revenue, and were purchased in the regular and legal course of its operations, and were performed upon an automobile owned by the State of Illinois, issued to the Department of Revenue, and assigned to one of its investigators.
(b) With respect to exhibit D, invoice Nos. 36222 and 36223, the services and materials therein stated were actually received by the Department of Revenue, and were purchased in the regular and legal course of its operations, and were performed upon an automobile, owned by the State of Illinois, issued to the Department of Revenue, and assigned to one of its investigators. The charges therein contained were performed as a result of an accident incurred by the assigned investigator in the course of his employment. An accident report, located in the files of the Department, substantiates this fact.
(c) The records of this Department further reveal that the said invoices marked exhibits C and D were presented for payment to the Chicago oEce of the Department, and were approved and forwarded for payment to the Springfield oEce, where a clerical error resulted in non-payment.
3. I hereby certify that the above facts are true.”

The above additional facts and stipulation are admitted at this time by an exercise of the discretionary powers of the Court. By the exercise of our discretion in this matter, we do not intend to set a precedent for this procedure. From the record, as it now stands, claimant is' entitled to recover from respondent the total sum of $362.93, and the claim for that amount is hereby allowed.


source: Caselaw Access Project

author: Wham, J.

license: Public Domain

text:
    (No. 4592
    Eugene Fuhrer, Max Fuhrer, and Martin Fuhrer, d/b/a Eugene and Max Fuhrer, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1955.

    Sydney W. Hollander, Attorney for Claimants.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

Claimants, registered architects and engineers, filed their complaint on December 14, 1953 against respondent, praying for damages in the amount of $38,586.98. The claim grew out of a written contract entered into between the parties on August 1,1945, wherein claimants agreed to perform architectural and engineering services in connection with the proposed building program for the Northern Illinois State Teachers College, located at DeKalb, Illinois. Respondent filed a motion to dismiss the complaint on the ground that the Court had no jurisdiction of the action, and that the alleged claim was barred, inasmuch as it was filed more than two years after the cause of action accrued. The motion was allowed by this Court on May 11, 1954.

On May 28, 1954, claimants filed a verified motion stating that, because of claimants’ misapprehension of the rules of the Court of Claims, they had failed to file objections to respondent’s motion to dismiss, and that claimants had good and valid subsisting objections to the motion to dismiss, and moved the Court for leave to file an amended and supplemental claim, setting forth matters and things alleviating respondent’s objections.

This Court, on the 23rd day of July, 1954, granted such leave to claimants on condition that same be filed within 30 days from the date of the order.

On August 21, 1954, claimants filed their amended complaint, which for all practical purposes was the same as their original complaint.

In the amended complaint, claimants contend that the contract should be construed as cancelled due to long-delays occasioned by contractors and various departments of the State of Illinois, numerous changes in plans made by the Division of Architecture and Engineering, and due to the fact that the various buildings of the project were not constructed simultaneously, but were constructed in a piece-meal manner at different times.

They contend that, because of the delays aforesaid, the completion time for the project was six years, rather than the time ordinarily required for such a project, namely, two and one-half years.

It is claimants’ position that they should, therefore, be compensated at the regular rate of 4%% of the actual cost of construction, which was considerably greater than that contemplated by the parties at the time the contract was entered into, on presumably an implied contractual or quantum meruit theory. This, claimants contend would amount to $78,062.99.

Also, they claim damages for the value of their services during the three and one-half year delay in the amount of $12,000.00, thus making a total of $90,-062.99, minus the sum of $51,476.01, previously paid to claimants on account of services rendered. The balance sued for, as aforesaid, is the sum of $38,586.98.

It appears from respondent’s motion, and the exhibits attached thereto, the validity of such exhibits not being questioned by claimants, and also by claimants’ answer to respondent’s motion, that the last payment on account of the entire contractual price was paid by respondent to claimant on April 27, 1951, in response to claimants’ final statement of account, dated January 30, 1951.

It is respondent’s position that any cause of action, which claimants might have had, accrued not later than the date of the final payment of the contractual amount, to-wit, April 27, 1951, or on the date claimants rendered their final statement to respondent, to-wit, January 30, 1951; that, therefore, the complaint was not filed until more than two years had elapsed since the accrual of the cause of action, and, consequently, said cause of action is barred by the two year limitation of the Court of Claims law.

Claimants’ answer to this position of respondent is that, on January 15,1952, claimants rendered services in comiection with completing the project, namely, an examination and approval of the installation and painting of a bag filter vent installed on the power plant of the project; that, notwithstanding the receipt of respondent’s voucher in full payment of the contract price, it was claimants’ duty, under the contract, to examine whatever work was done for the completion of the project by reason of a clause in the contract, which reads: “That the Architects and Engineers will visit the work on an average of once a week, and shall continue until all portions of the equipment, piping, electrical service, etc., function satisfactorily to the Supervising Architect”; that, because of the above contractual clause and the inspection of January 15, 1952, the statute of limitations did not begin to run until that date, and, therefore, the claim is not barred.

In considering the questions presented by this motion, and the pleadings in general, we must construe the complaint, together with all reasonable presumptions, intendments and inferences contained therein against claimants. Wright vs. Illinois Central Railroad Company, 119 Ill. App. 132 at 144; Carofalo Company, Inc. vs. St. Mary’s Packing Company, 339 Ill. App. 412.

First, it is difficult to determine upon what ground claimants intend to proceed. The amended complaint is drawn upon the theory that, because of the delays, the contract “must by these acts be construed as having been cancelled”, and the recovery sought is based to a large extent upon an implied contractual or quantum meruit theory. In claimants’ answer to respondent’s motion, it is apparent that they attempt to rely upon a portion of the contract to avoid the plea, of the time limitations. They cannot take both of these positions.

It is fundamental that there can not be an express and an implied contract at the same time. Velsical Corp. vs. Hyman, 405 Ill. 352; Borrowdale vs. Sugarman, 347 Ill. App. 390 at 395; and Stewart vs. McIntosh, 316 Ill. App. 212.

With respect to claimants’ contention that the contract was cancelled, there are no facts appearing anywhere in the complaint to the effect that the parties mutually agreed to a cancellation, nor are there any facts pleaded to establish a forfeiture under the terms of the contract.

For the purpose of this motion, we assume that the long delays, numerous changes, and piece-meal manner of construction on the part of respondent constituted a breach of an implied condition to complete the project within a reasonable time. In such event, claimants would have had'the right to rescind their contract.

Nowhere in the complaint are there any facts pleaded showing any action on the part of claimants, during the long delays complained, of, indicating an intention to rescind, nor notice to respondent complaining of any breach of contract. On the contrary, the conduct of claimants in submitting their final statement under the contract in January, 1951, coupled with the obvious fact that they knew of the alleged breach of contract now complained of, establishes upon the face of the pleadings a waiver of the cause for which they might have rescinded the contract.

In Schmahl vs. Aurora National Bank, 311 Ill. App. 228 at page 234, the court stated:

“Delays in performance of a contract may be waived by conduct indicating an intention to regard the contract as still in force. (Cottrell vs. Gerson, 371 Ill. 174; Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n. vs. Tucker, 157 Ill. 194; Evans vs. Howell, 211 Ill. 85; McArthur Bros. vs. Whitney, 202 Ill. 527.) After delays in performance have been waived, a contract cannot be rescinded for failure strictly to perform without giving notice and a reasonable opportunity to perform. (Plummer vs. Worthington, 321 Ill. 450; Hibernian Banking Ass’n. vs. Bed & Zoller Coal Co., 181 Ill. App. 581; Worth-Huskey Coal Co. vs. Columbia Malting Co., 230 Ill. App. 165; 1 Am. Jur. 251, par 65.)”

Also see Peterson Steels vs. Siedman, 188 F. (2d) 193.

This principle of law applies to this case, and, therefore, we hold that the contract must be considered as having remained in effect. The claim for compensation, based upon 4%% of the actual construction cost on a quantum meruit or implied contractual theory, is not well taken, and it is onr holding that the portion of the complaint setting forth such claim is stricken.

Next, in considering the balance of the claim, wherein it is contended that claimants are entitled to $12,000.00 for damages incurred by reason of the delays, we will assume for the purpose of passing on this motion that claimants sustained such damages.

They did not, however, make any claim for these damages until December 14, 1953, when they filed their original complaint. This was two years and ten months after they forwarded their final statement to respondent under the contract, and for which respondent’s final voucher was issued and cashed by claimants on April 27, 1951.

It seems to us that the reasonable intendment and inference arising from these facts is that claimants did not contemplate asking for any further compensation, and that both parties considered the contract completed for all practical purposes at that time.

Under these circumstances, any cause of action, over and above the contract price for damages occurring during the time preceding the aforesaid date, would have accrued, at the latest, on the date of the final payment.

The only services allegedly performed after said date was the inspection of January 15, 1952, heretofore referred to. We cannot, in the light of the matters heretofore set forth, attach such significance to this one isolated act, occurring approximately one year after claimants submitted their final statement, as holding open the contract until that date for the purpose of determining the accrual date of this alleged cause of action.

The claimants must bear the burden of pleading sufficient facts to state a cause of action within this ■Court’s jurisdiction. As heretofore stated, we must construe all reasonable presumptions, intendments and inferences of the pleadings against claimants.

We, therefore, find as to the claim for the alleged damages of $12,000, occurring by reason of the alleged delays, that the claim has been brought too late, and that by reason of the limitation of two years, provided in Section 239.22 of the Court of Claims Law, this Court has no jurisdiction to consider this claim; and that, therefore, respondent’s motion is hereby allowed, and the claim dismissed.


text:
    (No. 4640
    Howard Unger, d/b/a Kankakee Welding and Supply, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1955.
    Butz, Blanke and Stith, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Howard Unger, doing business as Kankakee Welding and Supply, in his complaint alleges that at various and sundry times over a period of several years he has sold and delivered to the Kankakee State Hospital various orders for oxygen and acetylene, and other materials, and has performed certain welding and metal' fabricating jobs, all of which materials and services were ordered by persons then in the employment of said Kankakee State Hospital, for and to the account of said Kankakee State Hospital, and that there is now due and owing from the State of Illinois to claimant a total sum of $296.59.

The complaint sets forth the invoices and items, for which claimant contends he has not been paid, and for which he is now making claim, as follows:

(1) Invoice No. 69307 (dated May 28, 1953)
For: Three (3) Cylinders of Oxygen (244 Cu. Ft.) Net Price ---------------------------------_-------------------------$12.81
One (1) Cylinder of Acetylene (312 Cu. Ft.) Net Price_______________________________________________________________ 11.70
Cost ______________________________________________________________________$24.51
O. E. _____________________________________________________ 49
Total Cost_________________ $25.00
(2) Invoice No. 68173 (dated May 8, 1953)
For: Three (3) Cylinders of Oxygen (244 Cu. Ft.) Net Price__________________________________________________________________$12.81
One (1) Cylinder of Acetylene (290 Cu. Ft.) Net Price__________________________________________________________________ 10.88
Cost ______________________________________________________________________$23.69
O. E___________________________________________________________________ .47
Total Cost_________________________________________________$24.16
(3) Invoice No. 66728 (dated April 9, 1953)
For: Three (3) Cylinders of Oxygen (244 Cu. Ft.) Net Price_______________________________________________________________$12.81
One (1) Cylinder of Acetylene (283 Cu. Ft.) Net Price_______________________________________________________________ 10.61
Cost _________________________________________________________________$23.42
O. E. ____________________________________________________________________47
Total Cost_______________________________________________$23.89
(4) Invoice No. 66445 (dated April 6, 1953)
For: Ten (10) Cylinders of Oxygen (medical) @ $4.27; Net Price-----------------------------------------------------------------$42.70
O. E.......................... 86
Total Cost___________________________________________________$43.56
(5) Invoice No. 66324 (dated April 1, 1953)
For: One (I) Harris Cutting Tip (for torch), Style No. 6290. Net Price____________________________________________________$ 3.00
O. E......................................................................06
Total Cost______________________________1--------------------$ 3.06
(6) Invoice No. 63259 (dated January 30, 1953)
For: Repair two (2) rear wheels for John Deere Tractor— Net Price........................... —...............................$42.80
(7) Invoice No. 60190 (dated November 28, 1952)
For: One (1) Pound Marvel Flux. Net Price___________________$ 1.00
Ten (10) pounds Va" No. 20 Bronze. Net Price________ 9.40
Cost ..............................................................$10.40
O. E...................................................................21
Total Cost...........-....................................$10.61
(8) Invoice No. 57742 (dated October 15, 1952)
For: Cut door and make door frame and chute for garbage truck -_____________________________________________________________$85.40
(9) Invoice No. 57947 (dated October 17, 1952)
For: One Cylinder Med. Oxygen. Net Price________________________$ 5.03
O. E___________________________________________________________________ .10
Total Cost__________________________________________________$ 5.13
(10) Invoice No. 57496 (dated October 11, 1952)
For: Weldauger for tractor hole digger. Net Price-------------$ 3.50
(11) Invoice No. 51662 (dated June 3, 1952)
For: Seat for Harris Cultivator Attachment. Price_____________$ .75
(12) Invoice No. 51670 (dated June 3, 1952)
For: Twenty-five pounds (25) 90A 1/16" Electrodes. Net Price________________________________________________________________$ 8.13
O. E......................................................................17
Total Cost________________________________________________$ 8.30
(13) Invoice No. 35675 (dated June 20, 1952)
For: One (1) Running Gear, Part No. 1384-1719. Net Price________________________________________________________--$15.00
O. E____________________________________________________________________30
Total Cost__________________________________________________$15.30
(14) Invoice No. 49417 (dated April 18, 1952)
For: One (1) Cylinder Med. Oxygen. Net Price_______________$ 5.03
O. E. ___________________________________________________________.......10
Total Cost__________________________________________________$ 5.13

The above invoices were sent to the Kankakee State Hospital on or about October 28, 1953. At that time they could not be reconciled with the available business office records, and were returned to claimant with a letter to the effect that no record of the transactions could be located; and, further, that the charges set forth in the invoices applied to funds of a previous biennium, which had lapsed, and for that reason could not be handled in the regular manner.

It appears from the Departmental and Supplemental Departmental Reports that the materials and services rendered by claimant, as set forth in said invoices, have been received by respondent, with the exception of invoices Nos. 11, 12 and 13, which have not been verified by respondent.

A stipulation, signed by claimant and respondent, has been filed stating that the Departmental and Supplemental. Departmental Reports of the Department of Public Welfare, signed by Otto L. Bettag, M. D., Director, and Cleve C. Odem, M. D., Superintendent, Kankakee State Hospital, heretofore filed with this Court, shall constitute the record in this case, and that the Court may proceed to dispose of the case upon such record without the filing of briefs or oral argument.

A motion requesting leave to dispense with the filing of briefs and arguments was allowed by the Court.

It appears from the Departmental Report that, at the time of the lapse of the 67th biennial appropriations, there were sufficient funds remaining to have covered the cost of the materials and services set forth in the above invoices.

Claimant in his complaint called the Court’s attention to the fact that a set-off exists in favor of respondent in the amount of $13.50 by reason of previous duplicate payments. Respondent in its Departmental Report verifies the duplicate payments in that amount.

Respondent further contends in its Departmental Report, that the amounts set forth in the invoices for retailers ’ occupational tax should not be included in any amount awarded claimant, since the State of Illinois is not subject to such tax. We agree with this contention of respondent.

We note that the complaint in this case was filed on September 7, 1954, and that the invoices above designated, Nos. 11,12,13 and 14, are dated prior to September 7, 1952, and, therefore, are barred by Section 22 of the Court of Claims Law, which provides as follows:

"Every claim cognizable by tire Court, and not otherwise sooner barred by law, shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within two years after it first accrues.”

We, therefore, cannot allow any recovery for the items in these invoices.

It appears from the record that the other invoices above set forth represent just and unpaid debts due and payable to claimant by the State of Illinois. The amount of these invoices totals $267.11. The amount to be deducted, as represented by the various charges for retailers occupational tax on said invoices, is $2.66, and the set-off by reason of previous duplicate payments in the amount of $13.50 is also to be deducted. This leaves a total of $250.95 due and owing claimant by respondent, and an award in that amount is hereby ordered.


text:
    (No. 4653
    The Walsh Oil Company, Inc., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1955.

    Walter O. Herschbach, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

The complaint filed herein alleges that claimant, An Illinois Corporation, entered into a contract with respondent to furnish certain work and materials to respondent at the Illinois State Penitentiary, Joliet and Stateville Branches, Joliet, Illinois. The contract is dated September 14, 1951, and a true and correct photostatic copy of same is attached to the complaint, and marked exhibit No. 1.

Claimant further alleges that, pursuant to the provisions of the contract, it was employed by respondent, by and through the Department of Public Works and Buildings, to furnish all work and materials for constructing certain sanitary sewers from the Joliet and Stateville Penitentiary Branches and connecting same with the Joliet City Sewer System, Joliet, Illinois, all as shown in the plans, and as specified. Respondent by the terms and provisions of said written contract agreed to pay claimant the sum of $220,897.50, being the estimated and anticipated total extension price of the various quantities and unit prices, as set forth in said contract.

In its complaint, claimant further alleges that the total extension of the quantities of work and material actually furnished to respondent at the agreed unit prices, as set forth in said contract, is in the sum of $242,450.32, and that, in addition thereto, claimant also furnished respondent certain extra and additional work and materials, all as requested, authorized and approved by respondent, of a value and agreed price of $6,217.68, thus making a total of $248,668.00 due and owing claimant in connection with said contract.

It appears from the complaint that, up to and including the filing date of the complaint, to-wit: November 1, 1954, respondent has paid to claimant a total sum of $229,829.03, leaving a balance now due and owing-claimant in the sum of $18,838.97 on said written contract.

It was further alleged in the complaint that all work and materials required by the written contract, and all extra or additional work and materials requested, authorized and approved by respondent, have been furnished. All of claimant’s duties and obligations with respect thereto have been fulfilled and completed, and have been accepted by respondent, the said contract having been fully performed and the project completed on or about January 1, 1953.

It appears from the complaint that claimant presented a claim to the Department of Public Works and Buildings of the State of Illinois, Division of Architecture and Engineering, on or about April 20, 1953; that thereafter a letter dated February 10, 1954, a copy of which is attached to the complaint, and marked exhibit No. 2, signed by Louis N. Herding, Supervising-Architect for said Department, was received by claimant. The letter reads as follows:

“We are advised by the Department of Public Safety that inasmuch as the funds appropriated in the 67th biennium to cover the cost of work at the above captioned project was not reappropriated, and that these funds lapsed September 30, 1953 by legislative action, that consequently no funds are available to make payment with regard to this contract during the 68th biennium.
The situation with which we are confronted is regrettable, however, it seems there is no other recourse but to file suit with the Court of Claims, Centennial Building, Springfield, Illinois. Inasmuch as all work in connection with this project is 100% complete, we see no reason why this claim cannot be filed at this time.”

The complaint further alleges that claimant is the owner of all the claims set forth therein, and that no assignment or transfer of any claim or any part or interest therein has been made; that a bill of particulars, setting forth the total amount due under the contract, and the amount previously paid, is attached to the complaint as exhibit No. 3, and shows the amount due as $18,838.97.

Claimant further alleges in its complaint that, before payment could be made, the appropriation made by the 67th biennium lapsed.

A stipulation has been entered into by claimant and respondent and filed herein, which stipulation reads as follows:

“(1) That the Departmental Report of the Division of Architecture and Engineering, Department of Public Works and Buildings, signed by Louis H. Gerding, Supervising Architect, and certified by E. A. Rosenstone, Director, heretofore filed with this Court, shall constitute the record in this case, and the Court may proceed to dispose of the case upon, such record without the filing of briefs or oral argument; and
(2) That this instrument is intended solely as a stipulation of the facts, or some of them, relating to the above captioned claim, and is executed for the purpose of avoiding the necessity of taking evidence with reference to such facts.
If, through inadvertence, or otherwise, conclusions are included herein, they are not intended to be binding either on the parties or on the Court.”

A motion ■ requesting leave to dispense with the filing of a brief and argument was jointly filed by claimant and respondent, and was allowed by the Court.

The Departmental Report, referred to in the stipulation, reads as follows:

“The present claim has as its foundation a contract between the Walsh Oil Company, Inc. and the State of Illinois, Division of Architecture and Engineering. This contract is designated No. 6775. The contract is for sanitary sewer connections at Illinois State Penitentiaries, Joliet and Stateville. The contract was entered into September 14, 1951, in accordance with Senate Bill No. 680. In view of the fact the contract was not completed before the close of the biennium, an extension of Senate Bill No. 680 was secured in Senate Bill No. 770. The work with regard to this contract was completed January 1, 1953, which is, of course, prior to the end of the biennium. The certificate of the Division of Architecture and Engineering was issued approving work as completed, and on May 19, 1953, a letter was written from Mr. Gerding to Mr. Bibb, of the Department of Safety, setting forth this fact, and stating that we owed the Walsh Oil Company, Inc. $18,838.97.
This Department checked with the Auditor’s Office, and it was determined that on January 1, 1953, there were sufficient funds remaining in this appropriation to pay the amount owed to the Walsh Oil Company, Inc. However, due to time consumed in processing the bills which were submitted, same were not approved for payment until after the appropriation had lapsed. All bills concerning this contract were submitted before the end of the biennium and before the appropriation had lapsed. In checking with the Auditor’s Office, it was determined that on January 1, 1953 there was left in this appropriation approximately $35,000.00, which, as has been pointed out before, is substantially in excess of the amount owed the Walsh Oil Company, Inc.”

From the record submitted in this case, it appears that the amount of $18,838.97 is now due and owing claimant by respondent, and the claim in that amount is hereby allowed.


author: Tolson, C. J.

text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1955.

    John W. Preihs, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant was injured on February 2, 1936 in an accident, which arose out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State, 11 C.C.R. 365, in which an award of $5,500.00 was made to claimant for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services, expended or incurred to and including October 22, 1940, and an annual life pension of $660.00.

Successive awards have been made by the Court from 1942 to and including February 1, 1954, and. the matter is now before the Court for an award to and including December 1, 1954.

The record consists of a verified petition, supported by original receipts, and waivers of claimant and respondent to file statement, brief, and argument, which were allowed in this case.

The petition alleges that claimant is still bedfast, and requires daily medical and nursing care. It further discloses that claimant has incurred expenses in the following amounts:

1. Nursing services________________________________________________________________$1,185.00
2. Board and room for nurses___________________ 638.75
3. Drugs and supplies______________________________________________________________ 217.36
4. Physician’s services______________________________________________________________ 1,102.50
5. Miscellaneous expenses --------------------- 96.02
TOTAL_________________________________________________________________________$3,239.63

From the previous records of this case, it appears that the Court has reserved jurisdiction of same from year to year to determine the future nqeds of claimant for additional care, and it further appears that the amounts involved were necessarily expended for the medical care of claimant.

An award is, therefore, made to claimant for medical, hospital and nursing care from February 1, 1954 to and including December 1, 1954 in the amount of $3,239.63.

The Court reserves jurisdiction for further determination of claimant’s need for additional medical care.


text:
    (No. 4523
    W. A. Melchior, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1953.

      Order filed March 25, 1955.

    Korshak and Rothman, and Drach and Howarth, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Wham, J.

In this case W. A. Melchior, claimant, contends that he is entitled to payment by respondent of the remaining sum due under a construction contract in the amount of $3,493.65, which respondent has failed and refused to pay. Claimant also contends that he is entitled to recover an additional sum of $1,062.20 for repairs made by Mm to equipment installed under the contract.

Respondent, having filed no answer to the complaint, is, under Rule 11 of the Court of Claims of the State of Illinois, presumed to have filed a general traverse, or demal of the facts set forth in the complaint, and, by virtue of such presumption, respondent deMes that claimant is entitled to the recovery prayed for.

The contract involved herein was entered into by claimant and respondent on August 17, 1949. The terms of the contract provide that claimant shall furnish all labor and materials to fully complete installation of the coal handling equipment for the power plant and associated utilities at the Lincoln State School and Colony, Lincoln, Illinois, in accordance with plans and specifications set forth at length in the contract, and detailed drawings furMshed by claimant and approved by respondent. The respondent agrees to pay claimant the sum of $19,891.00 for the installation of said system. The contract provides that respondent shall make payments on account to contractor on Ms obtaimng a certificate of payment from the Supervising ArcMtect upon fumisMng proof of the amounts due for services, labor, materials, etc., from time to time due, provided, however, that the amount of the payments previous to the substantial completion of the entire work shall not exceed 85% of the value of such material and labor as estimated by the Supervising ArcMtect, the final payment to be made witMn thirty days after completion in the manner, form and time required by the contract.

The contract specifically provides that:

“No payment whatever, or at any time, shall be demanded or due, except upon written certificate of the said Supervising Architect, to the effect that such payments have become due, and such certificates shall in each instance be a condition precedent to the right to require payment, and whose decision thereon shall be final.”

Article 8 of the General Conditions of the Contract provides that the Supervising Architect shall have general supervision and direction of the work. Article 9 provides that he shall make decisions on all claims of owner, or contractor, within a reasonable time.

Article 25 provides that the Supervising Architect shall issue the certificate of payment upon application by contractor when the payment falls. due ‘ or such amount as he (the Supervising Architect) decides to- be properly due”. Article 28 provides that the Supervising Architect may withhold any certificate of payment to protect owner from loss on account of defective work not remedied until such work is remedied.

Article 15 provides the contractor shall remedy any defects due to faulty workmanship, or faulty materials, upon written notice, and paragraph 1018 of the specifications provides that he shall correct at his expense any defects of manufacture, or installation, which developed within twelve months from the date of final acceptance by the Supervising Architect.

Article 14 provides that, if the Supervising Architect and owner deem it inexpedient to correct work not done in accordance with the contract, the difference in value, together with a fair allowance for damages, shall be deducted. Article 35 provides that, if the contractor shall neglect to prosecute the work properly, or fail to perform any provision of the contract, the owner may, after three days written notice to the contractor, without prejudicing any other remedy owner may have, make good the deficiencies, and deduct the cost from the payment due contractor, “provided, however, that the Supervising Architect shall approve both such action and the amount charged to contractor.”

Paragraph 2055 of the Specifications provides that the contractor shall “run- all equipment as in actual service, and demonstrate that it will perform all functions as specified”, this test to be run in the presence of a representative of the Supervising Architect. It further provides that the contractor shall instruct the operator regarding the operation and care of the equipment.

Article 36 provides that, if the contractor persistently disregards the instructions of the Supervising Architect, or otherwise is guilty of a substantial violation of any provision of the contract, the owner, upon the certificate of the Supervisng Architect that sufficient cause exists to justify such action, may without prejudice to any other right or remedy, and after giving the contractor seven days written notice, terminate the employment of the contractor, and take possession of the premises, and of all materials, tools and appliances thereon, and finish the work by whatever method he may deem expedient. In such case, the contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the contract price exceeds the expense of finishing the work, such excess shall be paid to the contractor. If such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, and the damage incurred through the contractor’s default, shall be certified by the Supervising Architect.

These provisions pertaining to action by the Supervising Architect are not uncommon in construction contracts. They appear in many contracts, both where a governmental body is a party, and where private parties are involved. In Williston on Contracts, Section 794, Vol. 3, page 2235, it is stated:

“Almost all contracts for building or engineering work of any importance provide that payment shall be made only when a certificate has been obtained from a supervising architect or engineer that the work has been performed as required by the specifications in the contract.”

And on page 2237:

“Not infrequently, however, the contract requires the certificate of the owner’s engineer or makes his decision final as to disputed matters connected with the proper performance of the contract, and such provisions are generally upheld.”

The purpose of these provisions is clear. In such projects, as is involved herein, the activities are of a technical and specialized nature. The knowledge of someone technically qualified to pass upon the performance of the contractor must be utilized, so as to arrive at, as near as possible, a compliance by both contractor and owner.

These provisions are far more than mere formalities to be complied with. When the parties to a contract agree to such, the power and discretion placed in the hands of the Supervising Architect is extensive, and the exercise thereof by the Supervising Architect is not to be easily overruled, or impeached. His decision is final in the absence of either fraud, gross mistake, unreasonable and arbitrary action, or a showing that he has knowingly and wilfully disregarded his duty, and rejected or condemned work, which he knew, or at least should have known, fully conformed in all respects to the terms of the contract. It is not sufficient to merely show that he arrived at a conclusion, which, in the opinion of others, was incorrect. The parties to the contract are bound by his decisions made in good faith when within the power delegated to him. Brownell Implement Company vs. Critchfield, 197 Ill. 61 at p. 70; Blome vs. Wahl-Henius Institute of Fermentology, 150 Ill. App. 164 at pp. 177 and 178; Gilmore vs. Courtney, 158 Ill. 432 at pp. 437-439; Martinsburg & Potomac Railroad Company vs. March, 114 U. S. 549, 29 U. S. Supreme Court Reports 255; United States vs. Moorman, 338 U. S. 457, 94 Law Ed. 256 at p. 259; 110 A.L.R. 137 at pp. 138-140; Williston on Contracts, Section 797, Vol. 3, p. 2242.

In this case, it is the Supervising Architect, a code officer of the State of Illinois, and, as such, a representative of all the people of the state, who owes a duty to use his best judgment in such matters as are submitted to him under the terms of the contract, both from the standpoint of the State of Illinos and the contractor. The parties hereto expressly agreed to this procedure.

It appears from the face of the complaint that claimant presented an application for certificate of payment to respondent for the balance due under the terms of the contract in the amount of $3,493.65, but that the Supervising Architect failed, and refused to make and authorize the payment. The complaint further alleges that claimant furnished all of the labor, material and equipment for the complete furnishing and installation of the coal handling equipment, and fully completed the work in accordance with the terms and provisions of the contract. He does not plead either a waiver, or an excuse, for the necessity of obtaining the certificate of the Supervising Architect, which is, by the terms of the contract, a condition precedent to the recovery of any amount due.. He does plead, however, that the work was accepted by respondent.

The law is clear that claimant, in order to recover on the contract, must both plead and prove a compliance on his part with all of the terms of the contract, including the performance of all conditions precedent. The burden of proof is upon claimant. Paragraph 674, Williston on Contracts, Vol. 3 at page 1936, states:

“It is always the duty of the plaintiff in his declaration or complaint to allege facts sufficient to make out a prima facie cause of action.”

In Noyes vs. Gold, 310 Ill. App. at page 6, the court held:

“The general mle that the burden of proof rests on the party having the affirmative of the issue is applicable to actions on contracts and the usual test employed to determine on which side the burden of proof lies is to ascertain which party would be entitled to a verdict if no evidence was offered on either side of the issue.”

The complaint must allege facts showing a fulfillment of the condition precedent, or some excuse for nonperformance of the condition. In Feder vs. Midland Casualty Company, 316 Ill. 552, the court at page 559 recognizes this principle of pleading, and the reasons therefor, and states:

“The object of a declaration in an action at law is to state the facts constituting the plaintiff’s cause of action upon which he relies to recover, so as to enable the defendant to prepare his defense and meet the facts alleged with appropriate evidence. In order to recover, the plaintiff must prove the case alleged in his declaration. It is a primary and elementary principle that a plaintiff can recover only on the case made in his declaration. He cannot make one case by his allegations and recover on a different case made by the proof. (Moss vs. Johnson, 22 Ill. 633; Nenifee vs. Higgins, 57 id. 50; Wabash Western Railway Co. vs. Friedman, 146 id. 583.) The defendant has a right to know what the plaintiff charges against him in order to properly make his defense and to prevent his being taken by surprise by the evidence at the trial. (Wabash Railroad Co. vs. Billings, 212 Ill. 37.) It is a familiar principle of pleading that when the consideration of the defendant’s contract is executory, or its performance is to depend on some acts to be done or forebome by the plaintiff, or on some other event, the plaintiff must aver the fulfillment of tire condition or show excuse for the non-performance. I Chitty on Pleading, 320; People vs. Glann, 70 Ill. 232.”

This same principle of pleading is recognized in contract cases such as the one at bar, wherein, as a condition precedent to recovery, a certificate of the Supervising Architect must be procured prior to final payment. The burden of pleading, and proving that such certificate was issued, is upon claimant, or, if it was not issued, a waiver of said condition or facts setting forth a good and sufficient excuse for not procuring same must be averred. In Michaelis vs. Wolf, 136 Ill. 68, the Supreme Court said at page 71:

“Where, in a building contract, provision is made for the payment of the price, or a portion or portions of such price, upon the certificate or certificates of the architect in charge of the construction of the building, the obtaining or presentation of such certificate or certificates is a condition precedent to the right to require payment, and such condition must be strictly complied with, or else a good and sufficient excuse shown for not complying therewith. Such compliance with the condition precedent, or excuse for non-compliance, must be averred in the pleadings and establishment by the evidence.”

In Errant vs. Columbia Western Mills, 195 Ill. App. 14, the court held in an abstract decision at page 16:

“Where a contractor’s right to recover a balance due on a building contract depended upon obtaining an architect's certificate showing the amount due, the obtaining of such certificate was a condition precedent to any right of action, which condition was to be strictly complied with, or good and sufficient excuse shown for non-compliance.”

In Hart vs. Carsley Manufacturing Co., 221 Ill. 444, the court said at page 446:

“The true rule is this: ‘though an excuse for not performing a condition is for some purpose equivalent to performance, yet it is not the same thing, and therefore in pleading, performance must never be averred by a party who relies upon an excuse for not performing, but he must state his excuse.’ Coke on Littleton, 304; Langdell on Contracts, sec. 175; I Chitty’s Pl. (14th Am. ed.) 340; Coult vs. Miller, 10 Cush, 49; Palmer vs. Sawyer, 114 Mass. 1; Speake vs. Shepard, 6 Har. and John, 81; Michaelis vs. Wolf, 136 Ill. 68; Parmly vs. Farrar, 169 id. 606; City of Peoria vs. Fruin-Bambrick Construction Co., id. 36.”

The Supreme Court in the case of City of Peoria vs. Fruin-Bambrick Construction Co., 169 Ill. 36, said at page 39:

“We think there is abundant authority for the rule that, when work is done under a contract, as was the case here, the plaintiff can only recover therefor when he has fully or substantially performed the conditions precedent to his right of recovery as stated in the contract, or also averred and proved a sufficient excuse for his non-compliance with its conditions. (Michaelis vs. Wolf, 136 Ill. 68; Barney vs. Giles, 120 id. 154.)”

See also the cases of Brownell Implement Company vs. Critchfield, 197 Ill. 61 at pp. 70-71; Victory Cabinet Company vs. Insurance Company, 183 F. 2(d) 360 at p. 364; Martinsburg & Potomac Railroad Company vs. March, 114 U. S. 549, 29 U. S. Supreme Court Reports 255; and United States vs. Moorman, 338 U. S. 457, 94 Law Ed. 256 at 259, which cases recognize the above stated rule of law.

The only possible grounds appearing in the com-plaint in this case upon which claimant might reasonably be held to allege an excuse for the non-fulfillment of the condition precedent is the allegation charging acceptance of the work. We do not hold, as a matter of law, that under this contract such acceptance would or would not be a waiver of such a condition precedent, or an excuse for the non-procurance of the architect’s certificate, but, even if it is the law that such would constitute a waiver or excuse, the respondent has denied that the work was accepted. Upon this issue, we have considered the evidence in an attempt to ascertain whether claimant has borne the burden of proving such an acceptance, and find that he has not.

The facts concerning this particular question are these:

In December of 1950 the fuel conveying equipment was installed, but could not go into operation at that time as electric power was not then available. In June of 1951, after the electric power had been provided, a test of the equipment was run by claimant’s agent, Mr. Theodore Stoff regen, in the presence of Mr. V anV alkenberg, Superintendent of Construction for the State of Illinois. This test consisted of operating said coal conveying system for a period of approximately twenty minutes according to testimony offered on behalf of claimant; the system operated satisfactorily for that period of time, and Mr. Stoff regen requested Mr. VanValkenberg to sign an acceptance of said equipment, which he did not do. Mr. V anV alkenberg testified that he informed Mr. Stoffregen that he would not accept the work at that time, since it had not been painted. Mr. V anV alkenberg further testified that the “dry run” at that time was not in accordance with the specifications required by the state, and that “we requested a later dry run”.

In the month of September, 1951, respondent’s agent requested claimant to send a man to check the installation before putting it into daily operation. This was after claimant had made application for a certificate of final payment in August. Claimant, in accordance with the request, sent Mr. Charles P. Reid, a superintendent and millright foreman, to check the equipment. He spent several days at the Lincoln State School, and a controversy has since developed between claimant and respondent as to whether or not certain damages to the equipment was the result of negligence of an agent of respondent. This, however, is not material in regard to the question of acceptance, and we will not extend this opinion by a discussion of that point at this time.

After the equipment was repaired, and a test run made, Mr. Reid had a conversation with Mr. VanValkenberg on October 9, 1951 — no one else being present. Mr. Reid states that Mr. V anV alkenberg promised to sign an acceptance of the job, but that he did not do so, and Mr. Reid left without the signed acceptance, or, as he describes it, the “release”. Mr. V anV alkenb erg testified that he never signed the acceptance, although he told Mr. Reid that he might accept it, if it would work. He further testified that he would have to see it in operation for a longer period of time than the test run on October 9. He then testified that the equipment shortly thereafter broke down again.

There is voluminous correspondence in evidence between the Supervising Architect’s office and claimant concerning the condition of this equipment between October 9, 1951, and the time of filing of suit. At no time did the Supervising Architect, or any agent of the state, sign an acceptance of the work, or verbally state an acceptance. On the contrary, respondent specifically refused to accept it. Respondent’s contention, as expressed by various letters from the Division of Architecture and Engineering, was to the effect that the coal handling system was still unsatisfactory after several attempts on the part of respondent to adjust it, and that several buckets on the elevator kept tearing loose, and demanded that claimant take the necessary steps to place the system in satisfactory operating condition acceptable to the state. Claimant contended by his letter of January 9, 1952, in reply to this demand, that respondent’s manner of operating the system was to blame, rather than the construction thereof, and stated that he would do no further work on the system until final payment was made. This was then, and is now, the basic disagreement between the parties. It is apparent from the testimony that claimant has not proved an acceptance on the part of the respondent.

The mere fact that the equipment was, and is being used by respondent, does not constitute an acceptance by reason of Article 25 of the Specifications, a part of the contract, which states in part that: “No certificate issued nor payment made to the contractor nor partial or entire use or occupancy of the work by the owner shall be an acceptance of any work or materials not in accordance with this contract.” Regardless of which party is right or wrong concerning the reason for the defective operation of the equipment, it appears to us from the evidence there was no intention upon the part of respondent to accept the work, and same has not been accepted.

No other waiver, or excuse for the necessity of obtaining the architect’s certificate, if such waiver or excuse exists, has been pleaded by claimant, who has the burden to do so. He can rely only upon the grounds of waiver or excuse, if any, which he has pleaded. In Feder vs. Midland Casualty Company, supra, the court at page 559 said:

“In order to recover the plaintiff must prove the case alleged in his declaration. It is a primary and elementary principle that a plaintiff can recover only on the case made in his declaration. He cannot make one case by his allegations and recover on a different case made by the proof.”

Inasmuch as claimant admits by his pleadings that no certificate was procured from the Supervising Architect, and, since he has failed to prove an acceptance of said fuel conveying system under the terms of the contract, we are compelled to hold that claimant, under the issues of this case as it now stands, is not entitled to recover at this time.

If there exists no waiver of the condition precedent requiring procurance of the architect’s certificate, or an excuse for the failure of obtaining the certificate, then such suit is premature, and both parties must look to the contract for further directions.

If, however, claimant relies upon such a waiver, or excuse, then he has not asserted it by his pleadings, or otherwise made his contention known. He has filed no brief and argument, and this Court does not intend to speculate upon what, if any, grounds of waiver or excuse claimant might rely. To do so would require that we become advocates for both parties at the same time, which is foreign to the exercise of the judicial process.

In view of the above, it is impossible for this Court to render a decision upon the merits of this case at the present time. We do not, however, intend to forever preclude either party, and, in order to protect the rights of both claimant and respondent, so that a final decision upon the merits may eventually be had, we are denying the claim at this time for the reasons stated herein, and with the express • understanding that such denial shall not operate as a bar to any further appropriate action in this case, nor will it bar the filing of other actions by either party. It is further our express holding that this decision and order is not a final determination against either claimant or respondent under Section 17 of the Court of Claims Law.

In the exercise of the inherent power of this Court to give effect to its orders, we specifically provide, but not by way of limitation, that claimant may file amended, additional or supplemental pleadings in this action within sixty days from the filing of this opinion, without the necessity of obtaining further leave; that respondent may thereupon file appropriate pleadings within thirty days after the filing of such amended, additional or supplemental pleadings; that this case shall be reassigned to a commissioner for the taking of further evidence upon the request of either party, if such request be made to this Court within the next succeeding session of the Court after the case is at issue upon the amended, additional or supplemental pleadings. It is the further order of this Court that there shall be no waiver of brief and argument by either party hereto, and that Rule 19 of the Rules of the Court of Claims, as amended on November 10, 1953, shall be complied with by both parties in any future action taken by either in this case.

Order

This cause coming on for hearing before the Court on this 25th day of March, 1955, upon the Court’s own motion to dismiss for want of prosecution;

And it appearing to the Court that no additional or supplemental pleadings have been filed by claimant by virtue of authority granted by the Court in its opinion filed December 18,1953, and numerous extensions of time thereafter granted;

It Is, Therefore, Ordered and Adjudged that this cause be and the same is hereby dismissed for want of prosecution, subject, however, to so much of the reservation contained in the original opinion, namely, that claimant is not to be precluded from filing a claim in respect to the matter involved herein if and when a cause of action accrues under the law as announced in said opinion.


text:
    (No. 4626
    Walter N. Clark, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1955.
    Gates W. Clancy, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case involves an action by claimant to recover damages to his automobile when struck by an army truck, driven by, and under the direction and control of Master Sergeant Joseph G. Leak, member of the 178th Infantry, 178th Regimental Combat Team, Illinois National Guard. The collision occurred on the 22nd day of December, 1953, in Chicago, Illinois.

The amount prayed for by claimant is the sum of $508.15, which is the amount of the repair bill. The collision loss on claimant’s vehicle was insured by the Hartford Fire Insurance Company on a $25.00 deductible basis, and, therefore, its interest in this matter is $483.15, and claimant’s interest is in the amount of $25.00.

The facts appearing from the record are as follows: On the 16th of November, 1953, Walter N. Clark was driving a 1950 Ford motor vehicle in a westerly direction on 39th Street in Chicago, Illinois. Master Sergeant Joseph Leak, as a member of the Illinois National Guard of the State of Illinois, was likewise driving a truck, owned and operated by the National Guard of the State of Illinois, in a westerly direction on said street. The collision between the two vehicles occurred at the intersection of 39th and Morgan Streets, which last mentioned street runs in a northerly and southerly direction. Morgan Street is a four lane highway, while 39th Street is a six lane highway. Traffic control lights were located at the intersection. The collision occurred at approximately 2:00 P. M. The pavement was dry, and the weather was clear.

Claimant was alone in Ms veMcle, and, as he approached the said intersection, the lights turned an amber color indicating a stop. Claimant testified that he was in the middle lane of the three westbound lanes, and, to Ms right, as he approached the intersection, was a motor bus, and slightly ahead and to Ms left was a large tractor-trailer. The tractor-trailer’s turn signals were being operated to indicate a left turn in a southerly direction down Morgan Street. Claimant stated that he had brought Ms motor vehicle to a complete stop at the intersection when Ms motor veMcle was struck by the National Guard truck from the rear. Claimant testified that he had applied Ms brakes several times before coming to a stop, and that Ms brake lights were working. Claimant further testified that Ms motor veMcle was knocked across the intersection by the impact, and was brought to a halt along the north curbing of 39th Street, west of Morgan Street, and 50 to 60 feet from the point of impact. The physical evidence indicates that there was a deep dent across the middle of the trunk of claimant’s automobile.

Claimant further testified that following the accident Master Sergeant Leak stated to him “I just didn’t see you in time”. TMs testimony is uncontradicted by Sergeant Leak.

Sergeant Leak testified that he was driving in a westerly direction in the tMrd lane nearest the double center line. As he approached Morgan Street, the light turned amber. He was traveling 15 to 20 miles per hour. According to Sergeant Leak, claimant suddeMy swerved Ms automobile from the middle westbound lane into the lane directly in front of Sergeant Leak’s truck, just as the vehicles approached Morgan Street.

Upon cross-examination, Sergeant Leak testified that the first time he saw claimant’s vehicle was when it left the middle lane, and swerved into the lane in which he was traveling. At that time he was approximately 20 to 25 feet from Morgan Street, and was traveling 20 to 25 miles an hour. The light at the intersection of 39th and Morgan Streets, facing the parties, was amber. Leak stated that he did not notice the semitrailer truck or the bus at the intersection. Leak testified that the point of impact was 8 to 10 feet east of the Morgan Street intersection, and that at the time of the impact he was going 10 to 15 miles an hour. He applied his brakes when he became aware of the impending collision. He left no skid marks. He stated that the Clark automobile was coming to a stop, and made a dead stop in front of him when the collision took place.

From the facts and circumstances in this case, we feel that claimant has established a case of liability against respondent. The evidence establishes to our satisfaction that Sergeant Leak was negligent in not maintaining Ms truck under sufficient control, as he approached the intersection, to avoid Mtting claimant’s vehicle. The automobile of claimant was Mt with sufficient force to knock it 50 or 60 feet. According to Sergeant Leak’s testimony, he did not see Clark’s automobile in sufficient time to avoid Mtting it. According to the testimony of claimant and Sergeant Leak, claimant’s veMele was stopped at the time of the collision. In those respects wherein the testimony is conflicting, it is our impression that claimant’s version of the accident is more convincing. The Commissioner, who presided at the hearing, and had the opportunity of observing the witnesses, as they testified, came to the same conclusion.

When a person approaches an intersection, he must exercise due care and caution in respect to vehicles in front of him, particularly when the traffic signals indicate a required stop. It appears from the testimony that Sergeant Leak did not have his vehicle under sufficient control, nor was he keeping a proper lookout.

Claimant should, therefore, recover against respondent.

The repair bill, admitted into evidence, established a total amount of $508.15 expended in repairing the automobile of claimant. Claimant testified, however, that a portion of the repairs, amounting to $26.37, was not occasioned by the collision in question, but that the balance of the repair bill was. Therefore, the total amount of damages established by evidence is $481.78.

It is, therefore, the judgment of this Court that the claim be allowed as follows: To Walter N. Clark the sum of $25.00; and to the Hartford Fire Insurance Company the sum of $456.78.


text:
    (No. 4232
    Kathryn A. Downey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1955.

    Ensel, Martin, Jones and Blanchard, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

This matter comes before the Court upon the supplemental complaint of Kathryn A. Downey, which was filed on March 19, 1954.

On October 21, 1948, claimant, Kathryn A. Downey, while employed in the office of the Secretary of the State, fell on a stairway, and sustained serious injuries to her back. On March 9, 1951, the matter was before the Court, and an award was made to the said claimant for medical and hospital expenses. (20 C.C.R. 232.) The Court specifically reserved jurisdiction of this case for further orders as from time to time might be necessary.

Since October 16, 1950, claimant has incurred additional expenses for medical and hospital care, medicines, and transportation charges.

This proceeding was heard by Commissioner Jones, and the following items of expense were admitted in evidence:

Johnston Surgical Supply Company----------------------------------------$ 37.50
Dr. Barbara A. Pleak------------------------------------------------------------------- 15.00
Springfield Rural Urban Clinic------------------------------------------- 173.75
St. John’s Hospital (physical therapy treatments)______________________ 172.00
Medicinal Supplies______________________________________________________ 7.00
Pharmacy ______________________________________________________________________ 12.00
X-Ray____________________________________________________________________________ 15.00
Other Medicines ______________________________________________________________________ 31.00
Transportation to Offices and Hospital__________________________________________ 139.00
Total ________________________________________________________________________$602.25

There was no dispute as to the said items, and, since no Departmental Report was offered, it was the recommendation of the Commissioner that the claim be allowed.

Harry L. Livingstone of Springfield, Illinois was employed to take and transcribe the testimony at the hearing, and has submitted charges for such services in in the amount of $48.80.

An award is, therefore, made to Kathryn A. Downey in the sum of $602.25.

An award is hereby made in favor of Harry L. Livingstone in the amount of $48.80 for court reporting services.

Jurisdiction of this case is specifically reserved for such further orders, as from time to time may be necessary.

This award is made subject to the approval of the Governor, as provided in Section 3 of “An Act Concerning the Payment of Compensation Awards to State Employees”.


author: Fearer, J.

text:
    (No. 4560
    John W. Martin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1955.
    Edward F. O’Malley and John J. Driscoll, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On July 20, 1953, claimant filed his complaint for personal injuries in this Court. The claim grew out of an accident, which occurred in the City of Collinsville, Madison County, Illinois, on August 11, 1952, somewhere between the hours of 9:30 and 9:45 A.M. Claimant, on said date, was employed by the Associated Retailers, who operated a delivery service out of St. Louis, Missouri, and his duties consisted in assisting the driver to arrange and deliver parcels.

On said date, Robert Povilat was employed by the State of Illinois as a temporary equipment operator in the Division of Highways, and was driving at said time a 1941 two and a half ton International dump truck.

At the time of the accident, Robert Povilat was acting within the scope of his employment, and as an agent and servant for respondent. On the morning in question, he had driven to the Highway Garage at French Village, a distance of approximately ten miles from Collinsville, for the purpose of getting wrenches and supplies for doing certain maintenance work. Riding with Mr. Povilat were two assistants, who did not testify at the time of the hearing before the Commissioner.

The undisputed facts are that it had been raining the morning of the accident, the pavements were wet, and at the time of the accident it was still misting. As respondent’s truck was being driven into Collinsville on U. S. Highway No. 40, which was also' known as St. Louis Road, and traveling in a northerly direction in a residential zone, there was parked a few inches from the curb, facing in a northerly direction, a 1950 Dodge panel ton and a half truck, which was a delivery truck owned by the Associated Retailers. This truck was parked in front of the residence at 718 St. Louis Road, where a delivery was being made. At the time of the accident, claimant, was facing south, standing inside of the truck rearranging parcels for delivery.

St. Louis Road, upon which the panel truck was parked, and respondent’s truck was being driven, is a four lane highway. As respondent’s truck approached the panel delivery truck, there was a semi-trailer truck coining from the north and traveling south, which respondent’s witnesses testified was traveling in the center of the street. As the driver of respondent’s truck was passing, or attempting to pass the panel truck parked by the curb, the semi-trailer truck, traveling in a southerly direction towards the center of the street, made it appear that respondent could not pass safely. When within seventy-five feet of the panel truck, Povilat applied the brakes on respondent’s truck causing it to veer to the right a few feet, so that the middle portion of the truck struck the panel portion on the left side of the truck parked at the curb, throwing claimant against a metal seat in the front part of the panel truck.

Mr. Povilat, the only witness, and the driver of respondent’s truck, testified that, where the panel truck was parked, the street was straight, and you could see a distance of at least six hundred feet in either direction. He testified that he had driven the said truck that morning since about 8:00 A.M., and had had occasion to use the brakes several times, and that they had not grabbed or caused the truck to veer in either direction, but that the truck had been sitting out in the rain all of the night before.

From the evidence, it is apparent that Mr. Povilat, the agent driving respondent’s truck, was guilty of negligence in not allowing the semi-trailer truck to pass the panel truck, parked at the curb, before he pulled respondent’s truck to within seventy-five feet of the panel truck, and then attempted to pass; and, seeing that he could not pass safely, he applied the brakes. It is apparent to us that the proximate cause of claimant’s injuries was the poor judgment of the driver of respondent’s truck in driving as close as he did to the panel truck in which claimant was standing, and did not do what an ordinarily careful person would have done under the same or similar circumstances, as the distance which the said truck veered was only about two feet.

There was nothing that claimant could do to avoid this accident, as he was standing inside of the truck, and could not see cars coming in either direction. The truck in which he was standing was parked within a very few inches of the curb, and, from the record, it was an area or zone in which parking could be made on either side of the street. This was a street at least forty feet in width, being a four lane highway, and probably was wider. However, there is nothing in the record to indicate the exact width of the street from curb to curb.

From a factual and legal situation, we find no problem in arriving at our decision as to the right of recovery. The only question that presents itself is the question of the amount of the award.

On the day of the accident, claimant was taken to the office of Dr. Robert Breaves, a practicing physician in Collinsville, who recommended that X-Rays be taken of claimant’s neck, and also prescribed medication. However, Dr. Breaves did not testify. Claimant waited a couple of days, and then went to Dr. Kane, a practicing physician in East St. Louis, who sent him to Dr. Kilian Fritsch for X-Rays. Dr. Bihss took several X-Rays at the request of Dr. Fritsch. Claimant first saw Dr. Fritsch on August 15, 1952, and continued, under his care until March of 1953.

Dr. Fritsch testified that he was a Specialist in Bone and Joint Surgery, and that he first saw claimant on August 15, 1952, and prescribed the taking of X-Rays. His examination at that time revealed that Mr. Martin, the claimant, held his neck rigid and stiff, as there was no motion in his neck; and that he referred to pain in his shoulders. Claimant gave him the history of the automobile accident on August 11, 1952, which was four days prior to his examination. At that time there was about ten degrees of flexion of the neck, with no extension at all. He prescribed medication for pain and application of hot towels, it being his opinion that he had sustained some injury to the bone structure in his neck, or a dislocation, which was confirmed by X-Rays. In reading the X-Rays, there was a subluxation of the third cervical vertebra on the fourth. When claimant returned on the 18th day of August, three days after his first visit, Dr. Fritsch ordered that he wear a head sling, which was prescribed for the neck traction to be used at home. This he continued to wear, and remained under the doctor’s care until he was fitted for a Thomas collar. Subjective findings were that there was tenderness in the neck, and limitation of motion in the neck. Claimant complained of tenderness, and pain in the arms, shoulders and neck. In the month of October, claimant still had pain in his shoulders, and the doctor applied ethyl chloride, and ordered that he wear shoulder braces, which were equipped with a strap across the front to pull the shoulder blades together, so as to absorb the strain off of the rhomboid muscles. Also, in the month of October, 1952, an injection of novocain was made between the shoulder blade and spine. At that time he was still wearing the collar. In the. latter part of October, 1952, when the doctor next saw him, claimant had lost about forty pounds, and was still wearing the shoulder braces and the Thomas collar. At that time he found that the pain in his arm had almost cleared up, but that he still had trouble sleeping nights, and was still taking medication for pain and sleep, particularly to relax the muscle spasm. He was again seen by the doctor on November 4, 1952, and there was still limitation of motion in the neck. He again complained of occasional pain in his right arm, and of trouble sleeping at night. Claimant was advised to wear a towel around his neck at night, and to take off the collar while sleeping.

He was next seen on November 18, and at that time was advised that he could return to work. Claimant returned to the doctor on November 24, and stated that he had tried to return to work, but was unable to continue, because of the jolting of the truck, which caused pain in his neck and shoulder. The doctor manipulated his neck at that time, and prescribed that he continue to wear the Thomas collar, and sleep with a towel around his neck at night.

He was next seen on December 9, and was found to be somewhat better. He was advised to increase the use of traction from two to three times a day, because of the pain in his back, and he was put on a schedule of rest for both morning and afternoon.

On December 16, his condition was improved, and he was going part of the time without the Thomas collar. He still continued to wear the shoulder braces, and was still taking medication. He was seen again in January of 1953, and appeared to be much better. He was not wearing the Thomas collar, but still had not returned to work. In February of 1953, he was released to return to work. He came back to the office in March of 1953, and stated that he still could not work, but. that he was much better, although his neck still bothered him, and he had trouble witty his shoulders. This was the last time that he was seen by the doctor.

The doctor testified that he saw John Martin approximately seventeen times, and that he had rendered a bill for his services in the amount of $120.00. He was asked to render an opinion, based upon his findings, as to permanency, particularly residual disability, and answered that “Claimant would have some permanent”.

On cross-examination, he referred to the subluxation as being a slight dislocation; that he didn’t find any fractures, and found very little evidence of arthritis; that the fourth cervical vertebra, which is above the shoulder, was out of place, and that it was probably a pressure on the nerve between the fourth and fifth cervical vertebra, which caused the pain in claimant’s shoulder. He stated that there was a marked muscle spasm when claimant first came to him, which had improved, and that claimant had fairly good motion of the neck. Upon examination, he found no bruises or marks on claimant’s neck or back, and no external signs of any other injuries. He further testified that, when claimant came into his office for the last time, he was seen by his associate, Dr. Hill, and that the only thing he knew about this visit was that claimant had stated he still could not work.

The only special damages testified to are as follows:

Dr. Kilian Fritsch, medical bill___________________________________$120.00
Dr. F. E. Bihss, for X-Rays___________________________________________________ 70.00
Thomas collar________________________________________________________________________ 25.00
Shoulder braces _________________________________________________________ 6.63
Head sling_______________________________________________________________________ 8.35
Total__________________________________________________________________$230.48

In regard to loss of earnings, it is rather difficult to arrive at an accurate figure. Claimant testified that he was earning $65.00 a week, in addition to overtime. Ten hours a week overtime at $2.00 an hour would amount to $85.00 a week. He stated that he did not work overtime every week, but on the Saturdays that he worked, in addition to his regular work, he earned an additional $20.00, making his total earnings for the week the sum of $85.00.

On page 16 of the transcript, there is a summary of claim for loss of earnings, wherein claimant testified that for a period of four and a half months he did not work for anyone else, that he was not able to work at all, and that by lifting he experienced pain in his shoulders and neck. Between August 11, 1952 and March, 1953, which was the last time that he saw the doctor, he had been out of employment for 28 weeks. However, during that time he worked for a period of four weeks. His wages varied between $65.00 and $110.00 a week, depending upon overtime.

On cross-examination, claimant contended that he was not employed at the present time, and that he had not been employed since the date of the accident, except for the four week period. On further cross-examination, claimant gave his address as Route 1, Patton, Missouri, and stated that he was living on a 160 acre farm, which he owned, and that his wife was operating a tavern. He further stated he had been working in the tavern for his wife since the accident, but did not receive regular pay, and that he had another man living on the farm' to take care of the livestock. He did state that he was able to do work in the tavern since the date of the accident.

At the time of the hearing, claimant gave his age as 41 years.

There was introduced in evidence as respondent’s exhibit No. 1, a covenant not to sue in the amount of $2,000.00, signed by claimant and Ms wife, and given to Robert Povilat, the driver of respondent’s truck.

As was stated previously, it is our opiMon that there is no question as to the liability of respondent.

However, there is some question in our minds as to the loss of earnings, and claimant’s ability to work from the date of the accident. His testimony that he had been assisting his wife in tending bar in her tavern should be taken into consideration, even though he testified that his wife had not paid him for services rendered.

In arriving at the amount of the award for claimant, we are taking into consideration the amount previously paid to Mm, as represented by the covenant not to sue, which was executed on April 22, 1953, wherein $2,000.00 was paid to claimant, and it is our opinion that an award should be made in addition thereto in the sum of $750.00.


text:
    (No. 4577
    Clyde Lovin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1955.

    William D. Hanagan, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On July 26, 1953, Clyde Lovin, while a volunteer patient at the Anna State Hospital, suffered an injury to his left hand. On October 6, 1953, he filed Ms complaint against the State of Illinois, alleging he was injured due to the negligence of a state employee.

The record in this case consists of the following: complaint, Departmental Report, transcript of evidence, statement, brief and argument of claimant, statement, brief and argument of respondent, reply brief of claimant, and Commissioner’s Report.

The facts of the case are as follows:

Claimant, Clyde Lovin, was admitted to the Anna State Hospital on August 26, 1952, as a volunteer patient. He was classified as a “Sociopathic Personality Disturbance, Dyssocial Reaction”. This was his third admission to the hospital. The previous two admissions were by committal of court.

On July 26, 1953, claimant was engaged in dusting a wall in the ward, and in so doing he placed his left hand into the frame of a hinged door, which a state employee, Lula Lambert, had opened to count out seven patients, who were reporting for a work detail. The door was equipped with an automatic closing device, and, not knowing that the patient had put his fingers between the door and frame, she permitted the door to close and shut automatically. As a result, the first two fingers of claimant’s left hand were injured. Claimant’s injuries consisted of the loss of the finger tips and nails of the index and middle finger. His hand was treated by an attending physician at the hospital, and claimant shortly thereafter served a fifteen day notice on the Superintendent of the Institution and was discharged.

The complaint consists of two counts — the first alleging negligence on the part of Lula Lambert, a state employee, in failing to notice that claimant was working in the vicinity of the door in question; and the second alleging wilful and wanton conduct on the part of Lula Lambert. Nothing in the record supports the second count charging wilful and wanton conduct, and the Court, on its own motion, does hereby dismiss it.

Complainant seeks damages in the amount of $2,-500.00, and alleges that he has been forced to spend large sums for medical treatment, and will be required to spend large sums in the future for further treatment. In this regard, it appears from the transcript that claimant was treated five times by a Mt. Vernon physician after his discharge from the hospital, and that the total medical bill amounted to $14.00. This bill was not paid by claimant, but was, in fact, paid by the office of general assistance of Mt. Vernon township.

Claimant, therefore, to recover must establish negligence on the part of respondent, and prove that he was not guilty of contributory negligence.

At this point, it should be noted that claimant was a voluntary patient. He was not diagnosed as suffering from a mental illness, such as that it could be said, he was incapable of being guilty of contributory negligence.

Respondent argues that claimant has failed to establish negligence by a preponderance of the evidence, and that, in fact, by placing his hand into an open door, claimant was guilty of contributory negligence.

Claimant argues in his brief that the Court of Claims Act should be construed so that the words “Sovereignty” and “Charity” would be eliminated as a defense to any action in the Court of Claims, and, therefore, the degree of care required at the Anna State Hospital would be the same degree of care as that required in a private profit-making hospital.

Without passing on this theory advanced by claimant, the Court has examined some of the cases cited by claimant, and, in particular, the case of Simmons vs. South Shore Hospital, 340 Ill. App. 153, 91 N.E. (2d) 135.

In this case, the administrator of the estate of Martin Simmons brought suit against South Shore Hospital for the wrongful death of Martin Simmons, while he was a patient at said hospital. The patient had a previous record of heart trouble, and had been taken to the X-Ray room for pictures. Thereafter, he was placed on a hospital cart by a nurse, who left him alone for a few minutes. He fell from the cart, and sustained a broken femur and other injuries, and died a short time thereafter.

At the close of the case, the trial court directed a verdict for defendant, because of a failure to prove negligence, and, on appeal, the Court said:

“Defendant owed Martin Simmons the duty of protection, .and was bound to use such reasonable care as his known condition required, but was not an insurer of his safety. Maki vs. Murray Hospital, 91 Mont. 251, 7 P. (2d), 228, 233; 41 C.J.S., Hospitals 8, pp. 349, 350.
We must not shut our eyes to obvious consequences of imposing unreasonable burdens upon hospitals. Under a logical extension of plaintiff's view, the technician would not have been free to place the films in the tank in the dark room off the laboratory without being negligent, for she would not then have been in a position to prevent Simmons from falling. We think that all reasonable minds should and would agree that the answer to the precise question is that defendant had no obligation not to leave Simmons for about two minutes under the circumstances. Our conclusion is that the trial court did not err in directing a verdict.”

Iii the instant case, it would be unreasonable to assume that the attendant “knew”, or “should have known”, that a patient working nearby would place his fingers in a door casing between the opened door and the door jam.

Using the language of the Simmons case, “it would impose unreasonable burdens upon hospitals” to provide an attendant to watch a volunteer patient, who was not suffering from a mental illness, to see that he did not harm himself, while engaged in the simple task of dusting a wall.

The record does not disclose any acts of negligence on the part of the attendant. She opened the door to count out seven patients for a work detail. The door closed automatically. The inescapable conclusion is that the injury complained of was caused exclusively by the negligence of claimant, and an award cannot be allowed.

The claim is, therefore, denied.


text:
    (No. 4636
    Earl H. Beling, d/b/a Beling Engineering Consultants, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1955.

    Andrew Kopp, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

The complaint filed herein alleges that there is now due and owing claimant from respondent the sum of $3,190.77. Said amount represents the balance due on certain contracts wherein claimant furnished engineering services in designing and supervising the construction of new boilers, turbine generator, and the electrical distribution system at the Illinois State Penitentiary, Menard Branch, Menard, Illinois. The contracts were entered into on January 16, 1946, and were subsequently revised by the Supervising Architect of the State of Illinois. These services are further described in the complaint as being furnished under the provisions of contracts Nos. 64142 and 6738.

It is further alleged that the provisions of the contract were completely performed by claimant on September 17, 1953; that respondent was submitted a statement for the balance due and owing claimant on March 15,1954; and, that the appropriation lapsed prior to the payment of said claim.

Respondent’s Departmental Report, dated January 24, 1955, and signed by E. A. Rosenstone, Director of Public Works and Buildings, acknowledges that the balance due and owing claimant for performing said services under said contracts is $3,190.77.

Respondent has stipulated in writing with claimant that the said Departmental Report shall constitute the record in the case, and that briefs and arguments shall be waived.

From the record submitted in this case, it appears that the amount of $3,190.77 is now due and owing-claimant by respondent, and the claim in that amount is hereby allowed.