text:
    (No. 4407
    Fabick Tugboat Rental Co., Inc., a corp., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 26, 1952.

    Ensel, Martin, Jones and Blanchard, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Complaint was filed herein by Fabick Tugboat Rental Co., Inc., a Corporation, claimant, on May 15, 1952 to recover for property damage to its motor vessel, the Nina F, and for loss of revenue sustained as the result of a collision of the Nina F with the Jefferson Street bridge, which spans the Des Plaines River at Joliet, Illinois, on May 26, 1950.

On May 26, 1950, the Nina F, under the command of Captain Albert Mallory, was proceeding upstream on the Des Plaines River in the vicinity of Joliet, Illinois. The Nina F was 68 feet long, and was controlled from the pilot house by automatic air brake controls. It was also equipped with an air horn and various lights. At the time in question, the Nina F was pushing three barges strung out ahead, each of the barges being 195 feet long and 35 feet wide. As the Nina F approached the Rock Island Railroad bridge in Joliet, Captain Mallory gave the proper signals, and stopped until a train crossed the bridge, and the bridge was reopened. North, or upstream from the railroad bridge, was the Jefferson Street bridge, a distance of approximately a quarter of a mile, or 1,320 feet. After the Nina F passed under the railroad bridge, the Captain signaled the Jefferson Street bridge to open, but received no reply signal. The Captain went about half way between the two bridges, or some 600 feet south of the Jefferson Street bridge, and again gave the proper signal, but received none from the bridge tender. At that time Captain Mallory said he could see the bridge tender at his post, and he signaled him with the lights, but received no return signal. He continued on toward the bridge, and gave another signal when approximately 300 feet from the bridge, and then, not receiving a return signal, he gave a distress signal, and immediately reversed his engine to full astern, but he was unable to stop the Nina F, and the barges and the Nina F crashed into the bridge with the resulting damage.

Captain Mallory further testified that, as he proceeded upstream, he was traveling about two miles per hour, and that in his opinion he could stop the barge in the distance of about 300 feet. After the accident the Captain pulled the barge into the dock, and went back to the bridge tender to inquire why the bridge hadn’t been opened. The testimony is that the bridge tender stated that he didn’t see or hear any signals. Mallory testified that in his opinion the bridge tender was intoxicated.

The record consists of the complaint, motion of respondent for an extension of thirty days in which to file pleadings, order of Chief Justice granting respondent an extension of time to April 27, 1951 in which to file pleadings, Departmental Report, original transcript of evidence, copy of transcript of evidence, statement, brief and argument of claimant, statement, brief and argument of respondent, and reply brief of claimant. .

The only evidence introduced at the hearing was that of Captain. Mallory and Frank V. Horvath, the manager and chief accounting officer of claimant Company, and the Departmental Report.

We are of the opinion that failing to raise the bridge, when it had ample notice of the approach of the vessel, was a neglect of duty on the part of the respondent. The State of Illinois, acting by and through its agent, was guilty of negligence, which proximately caused the damages complained of by the claimant.

In the case of Clement vs. Metropolitan West Side El. Ry. Co., 123 Fed. 271 (C.C.A. 7th Cir., 1903), which involves facts similar to those in the instant case, the Court said:

“A bridge spanning a navigable river is an obstruction to navigation tolerated because of necessity and convenience to commerce upon land. Such a structure must be so maintained and operated that navigation may not be impeded more than is absolutely necessary, the right of navigation being paramount. It is incumbent upon the owner that the bridge be so constructed that it may be readily opened to admit the passage of craft, and maintained in suitable condition thereto. It is also his duty to place in charge those who are competent to operate the bridge, to watch for signals, and to open the bridge for the passage of vessels, and for the performance of such delegated duty he is responsible. It is also his duty to equip the bridge with proper lights giving warning of the position of the bridge and of its opening and closing. If for any reason the bridge cannot be opened, proper signals should be given to that effect, such as will warn the approaching vessel in time to heave to. A vessel, having given the proper signal to open the bridge and prudently proceeding under slow speed has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage. She is not bound to heave to until the bridge has been swung or raised and locked, and to critically examine the situation before proceeding (City of Chicago vs. Mullen, 54 C.C.A. 94, 116 Fed. 292), but may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, and may so proceed until such time as it appears by proper warning, or in reasonable view of the situation, that the bridge will not be opened (Manistee Lumber Company vs. City of Chicago (D.C.), 44 Fed. 87; Central Railroad Company of New Jersey vs. Pennsylvania Railroad Company, 8 C.C.A. 86, 59 Fed. 192), when it becomes the duty of the vessel, if possible, to stop, and, if necessary, to go astern.”

The cause of action herein having accrued on May 26, 1950, all claims against the State of Illinois for damages in cases sounding in tort shall not exceed the sum of $2,500.00.

An award is, therefore, entered in favor of the claimant, Fabick Tugboat Rental Co., Inc., for the sum of $2,500.00.


source: Caselaw Access Project

author: Schuman, C. J. Schuman, C. J.

license: Public Domain

text:
    (No. 4483
    Thomas J. Flisk, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

      Supplemental opinion denying Claimant’s petition for rehearing filed November 26, 1952.

    Owen and Lundeberg, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

This claim arises out of the same set of facts as those set forth in consolidated cases Nos. 4393 and 4394, wherein William Winston and Patrick Clancy are claimants.

A detailed statement of facts surrounding the occurrence, medical testimony, and resulting disability of the claimant will not be necessary for a decision.

The maximum tort liability of respondent in this case is $2,500.00. It is admitted claimant has received the sum of $6,300.00 from persons deemed jointly responsible for his injuries. This amount, under the authority of the State of Illinois, would have to be deducted from any sum. allowed by this Court, and hence no damages could be awarded.

A collection of authorities on this point is found in Aldridge vs. Norris, 337 Ill. App. 369, the rule being that when suit is brought against one joint wrongdoer, the amount paid by another joint wrongdoer is to be credited on any liability, which may be found to exist against the one sued.

For this reason, the claim will be denied.

Supplemental Opinion

Schuman, C. J.

This case is to be considered in conjunction with the opinion rendered in consolidated cases Nos. 4393 and 4394, wherein William Winston and Patrick Clancy were claimants. The opinion in that case as to the law applicable to the facts applies here, and the claim would have to be denied on the theory therein established.

The additional point established in this case was to announce the law as to the amount that could be recovered in a case authorizing recovery.

For the reasons advanced, the petition for rehearing is denied.


author: Schuman, C. J.

text:
    (No. 4499
    Betty Secaur, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 26, 1952.

    Lester B. Marshall, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

This claim arises out of the unlawful discharge of a Civil Service employee, and, claimant, Betty Secaur, seeks to recover wages, which were due her during her unlawful discharge.

Claimant, Betty Secaur, with Civil Service status, was transferred from the Illinois Public Aid Commission of Illinois, and appointed to the classified service of the Department of Registration and Education of the State of Illinois as Field Investigator II on January 1, 1949, and continued to be assigned to that Department until March 19, 1949, when, upon written notice from the Director of said Department, she was discharged. During said period she was paid a salary of $225.00 per month, although during that time she was not assigned to perform any actual work.

The matter of the legality or propriety of claimant’s discharge as Field Investigator II, as aforesaid, and her right to receive salary for the period involved in that suit was heretofore litigated in a hearing before the Civil Service Commission of Illinois, which Commission found that her discharge had been for just cause. This decision was appealed to the Superior Court of Cook County, where a hearing was had, and a finding and decision rendered that her discharge was not for just cause, and she was ordered reinstated. After that the State of Illinois took an appeal of the case to the Supreme Court of Illinois, where the decision of the Superior Court of Cook County was affirmed. (408 Ill. 197.) This covered the period of claimant’s employment with respondent as aforesaid from July 1, 1949 to the date of her reinstatement in February, 1951. Subsequent to the above Supreme Court decision, claimant filed a petition for mandamus in the Superior Court of Cook County, and an order was entered by that Court directing the State Treasurer and the State Auditor of Public Accounts to make payment of claimant’s salary for the period from July 1, 1949 to the date of her reinstatement in February, 1951.

During the period in controversy, March 19, 1949 through June 30, 1949, claimant was unemployed, and was ready, willing and able to perform her duties as Field Investigator II for said Department. Prior to receiving said notice of discharge, she made repeated telephone and personal calls to said Department, but, according to her testimony, received no work assignment.

Respondent paid claimant her salary of $225.00 per month from January 1, 1949 to March 19, 1949 voluntarily, and paid claimant her salary, after extended litigation, for the period from July 1, 1949 up to the date of her reinstatement in February 1951, at the rate of $225.00 per month.

It appears, therefore, that claimant is entitled to be paid her salary for the period here in controversy, that is from March 19, 1949 to June 30, 1949, at $225.00 per month.

There is no answer or affirmative defense made in this case, and the only conclusion that the Court can make is that the claimant is entitled to her salary for the period in controversy.

Therefore, an award is entered allowing claimant her salary for the period from March 19, 1949 to June 30, 1949, a period of 3 months and 12 days, at the rate of $225.00 per month, in the amount claimed, being $762.09.


author: Delaney, J.

text:
    (No. 4526
    Southeastern Illinois Electric Cooperative, Inc., a corp., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 26, 1952.

    S. D. Wise, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. ArthurNebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The complaint herein was filed on September 18, 1952, by the claimant, Southeastern Illinois Electric Cooperative, Inc., A Corporation of the State of Illinois, wherein it is alleged employees of the respondent in the operation of a dragline allowed the boom to damage claimant’s electric distribution line, which was adjacent to the west side of State Bond Issue Route No. 142; said distribution line being located upon the private property of farm owners, but being near and adjacent to the west right-of-way line of said Route No. 142.

Respondent filed its motion to strike alleging:

1. The complaint fails to allege that the claimant was in the exercise of due care and caution for the protection of its property at the time of the alleged damages.

2. The complaint fails to allege that the employee allegedly operating the dragline was acting for or on behalf of the State of Illinois at the time claimant’s property was allegedly damaged.

On failure to plead due care and caution, the claimant’s complaint is hereby dismissed.


author: Delaney, C. J.

text:
    (No. 4417
    Edythe Morton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1953.

    Joseph H. Goldenhersh, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, C. J.

On March 31, 1950, the claimant, Edythe Morton, was riding as a passenger in an automobile driven by her son, Lester. There were three other passengers in the car. They were traveling along U. S. Highway No. 460. An accident occurred about four miles southwest of the City of East St. Louis. At the place of the accident, a crew of men, employed by the Illinois Division of Highways, were engaged in filling a slide-in on the shoulder north of the highway. A truck was being used to transport dirt to the place of the fill-in. As the car in which the claimant was riding was about thirty feet from the truck, the truck lurched forward, and partially blocked the lane in which claimant’s car was traveling. The driver of claimant’s car swung his car to the left, and struck the center island of the highway. The car overturned, and came to a rest on its side.

After the accident, claimant was taken to St. Mary’s Hospital in East St. Louis, where she was given emergency treatment. The claimant suffered a brain concussion.

Previously an opinion was filed in this case denying an award. On petition of claimant and a review of this case, we now have reached the conclusion that our original opinion was in error, and that claimant is entitled to an award in the sum of $1,500.00.

The record consists of the complaint, motion of respondent for an extension of time in which to file pleadings, order of Chief Justice granting the motion of respondent for an extension of time in which to file pleadings, answer of respondent, Departmental Report, transcript of evidence taken on June 29, 1951, additional transcript of evidence taken on June 29, 1951, abstract of evidence, brief of claimant, statement, brief and argument of respondent, . additional abstract of evidence, reply brief of claimant, oral arguments of attorneys for claimant and respondent, and claimant’s petition for rehearing.

Route U. S. No. 460 at the location in question, consists of a four lane concrete pavement — two lanes for each direction of travel. A raised median curb separates the opposing lanes of traffic. At each end of the repair zone, there was a barricade set up across the outer or northerly traffic lane, and to the southeast of the easterly barricade on the northerly shoulder facing east was a series of signs indicating the presence of workmen and repair zone ahead. Although the respondent employed a flagman to slow down traffic, there is considerable doubt as to what, if any, signal was given to the driver of claimant’s car.

Regardless of whether or not the driver of the automobile in which claimant was a passenger was negligent, this case involves a factual question of the necessity of claimant to perceive a danger, which the driver failed to recognize. We do not believe from the evidence that it was necessary for the claimant to warn the driver in this case, and that she was not contributorily negligent.

The accident under consideration was due to the negligent operation of respondent’s truck.

Claimant has expended, as a result of the accident, the following sums: to Dr. Compton, $40.00; to St. Mary’s Hospital, $72.15; and, to Dr. Burroughs, $49.00. Clothing of claimant, which cost $200.00, was destroyed. Claimant suffered a concussion, and serious and permanent injuries to her hand. According to the testimony of Dr. Burroughs, her hand, which has a large swollen area, is permanently injured.

An award is, therefore, entered in favor of Edythe Morton, the claimant, in the amount of Fifteen Hundred Dollars ($1,500.00).


author: Lansden, J.

text:
    (No. 4446
    Worth Bishop, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1953.

    Dunn and Hayes, Attorneys for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Worth Bishop, seeks to recover damages from respondent for the negligent operation of a truck, which was engaged in keeping snow and ice off of State Route No. 47 in Livingston County.

The accident involved herein occurred on November 22, 1950. Claimant suffered minor personal injuries, but his automobile was demolished.

Claimant was a sailor in the United States Navy stationed at Great Lakes, and on the afternoon of November 22, 1950 at approximately 4:30 P.M. he, accompanied by his wife, and another sailor by the name of William D. Jones, left their home in Waukegan driving to Mt. Zion, Illinois, near Decatur, for the purpose of spending Thanksgiving with their families. Shortly before the accident they stopped at a drug store in Dwight, Illinois for sandwiches and milk shakes. Prior to this time the weather had been good, and the pavement clear, but after leaving Dwight they ran into fog, slight snow flurries, and icy patches on the pavement. At this time claimant was driving, his wife was in the center, and Jones on the right side of the front seat. They drove south on Illinois Route No. 47, and, when about 10 or 12 miles south of Dwight, the accident occurred.

The evidence in the case consisted of the testimony of claimant, Worth Bishop, his wife, Madalyn Bishop, Lloyd Doran, Asa J. Edwards, Blaine Righter and Ethel McCreery.

Claimant testified that he was driving south on Illinois Route No. 47 on the west side of the highway at a speed of 35 to 40 miles per hour; that the pavement was icy in spots, visibility was somewhat poor, and that he had his lights on dim in order to see better in the fog; that when they reached a point approximately 10 or 12 miles south of Dwight he saw a truck stopped or parked on the highway, and he immediately applied his brakes, and swerved to the left, but the right front of his car struck the left rear of the truck. He further testified that there were no lights burning on the truck, and no flares or warning signals out guarding against possible danger; that the truck was a State Highway maintenance truck in charge of Asa Edwards and Lloyd Doran, and that he had a conversation with Edwards, in which he stated that the flare lights were not burning. He testified that the car was a 1947 Oldsmobile club coupe, which he had purchased in October of 1950 for $1,125.00, and that after the accident he sold the car to the auto wreckers for $227.50. Claimant also testified to the injuries received in the accident, and at the time of trial had a small scar on his head, mostly covered by hair, and not too visible at the time of the hearing. He further testified that he was a patient at the Veterans Hospital at Dwight, Illinois for six days, and was later attended by doctors at Great Lakes. He had additional expenses of $15.00 for towing, cleaning bills to car and clothing of $15.00, transportation charges back to Waukegan, loss of his suit, which he valued at $60.00, and other charges for transportation after returning to his home. At the time of the hearing he had made a good recovery from his injuries, and, other than the slight scar, bore no effects of any injuries.

Claimant’s wife testified substantially the same as her husband, and said she saw no lights on the truck prior to the accident, or after the accident. She also testified as to a conversation with one of the State employees.

The testimony of Blaine Righter consisted of the fact that he operated a service station a short distance north of the scene of the accident, and that the State employees had stopped there for cigarettes a short time before the accident. He knew nothing about the accident, except that, after closing the service station, he heard a. car pass, and then later heard the collision.

Asa J. Edwards, the highway employee in charge of the State truck, testified that they were out cindering the highway that night, and that they were driving south on Route No. 47 returning to Forrest, Illinois; that they had stopped at the filling station just north of the I.C. tracks, and, after leaving the filling station, and approaching the tracks, began cindering the highway, which was slippery; that at that time something happened to the truck motor, and they got out of the truck to repair same, and it was at this time that the truck was struck by the car. Edwards .testified that there were lights on the rear of the truck, and that a flare was burning both before and after the accident.

Lloyd Doran, a highway section helper, testified that, while they were cindering near the I. C. tracks at a point about two miles north of Saunemin, the motor on the truck failed, and that he and Edwards got out of the truck, and attempted to repair same. There was some dispute as to how long they had stopped, and he stated that it was about 3 or 4 minutes, and he further testified that the flash lights on the truck were not burning, although they did have lights.

Ethel McCreery, a registered nurse, testified that she lived in Fairbury, Illinois, and that on the night in question she was returning from Joliet, Illinois to her home; that at a point about 5 miles north of the scene of the accident she pulled up behind the State truck, and almost hit same, because there were no lights burning on the truck, and, that because of her inability to pass, because of an approaching car, she was forced into the ditch; that a passing motorist took her to Saunemin, where they secured the services of a wrecker, which pulled her car from the ditch; that she then proceeded on south on Route No. 47, and, at a short distance south of her mishap, she came upon the scene of the accident; that the truck at that time did not have lights burning, but that the lights of the car were burning. She also stated that the night was foggy, and the road slippery.

In weighing the' evidence in this case, we have been greatly impressed by the testimony of witness McCreery. Her testimony was that of a wholly disinterested person. However, we can not say the same for the testimony of Doran and Edwards. In the testimony of each were discrepancies and inconsistencies that, in our opinion, seriously weaken the probative force of their testimony on the disputed and crucial facts. There is no doubt in our minds that there had been trouble with the lights on the truck, that the battery was weak, and, that when the motor stalled, and Edwards tried to use the starter, the lights, if any were operating, were wholly inadequate for the time, place and position of the truck.

We, therefore, conclude that respondent was negligent in failing to have lights and flares working, and in use, and that claimant is entitled to an award.

The damages to claimant’s automobile amounted to $900.00, and he was out-of-pocket approximately another $100.00 for miscellaneous expenses. His injuries were not serious, but were painful, and fortunately not disfiguring. We believe an allowance of $750.03 for his personal injuries would be reasonable. Claimant’s total damages amount to $1,750.00.

An award is entered in favor of claimant, Worth Bishop, for $1,750.00.


author: Farthing, J.

text:
    (No. 4520
    John Sinopoli, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1953.

    Michael F. Ryan, Attorney for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Farthing, J.

The claimant, John Sinopoli, began his employment with the Illinois Department of Agriculture on February 1, 1931, and on May 1, 1942 he was certified as a Grain Sampler in the Division of the Chicago Grain Inspection. His title was later changed to “Grain Sampler I”. He was discharged, without a hearing before the. Illinois State Civil Service Commission, on May 7, 1949. The ground stated was that Sinopoli was a “probationary appointee”.

On June 26, 1950, in the case of People ex rel Sinopoli vs. Yung, Director of the Department of Agriculture, No. 49 S 19260 in the Superior Court of Cook County, that Court ordered the writ of mandamus to issue as prayed. It directed the reinstatement of Sinopoli as a Grain Sampler I as of May 7, 1949, and found that he should be paid back salary from May 7, 1949 to and including his reinstatement, but that the appropriation for the period from May 7 to June 30, 1949 had expired. Payment of back salary in the mandamus case was, therefore, limited to the period from July 1, 1949 to the date of reinstatement. Sinopoli was restored to his former position on July 25, 1950, and paid his back salary of $210.00 per month from July 1, 1949 to July 25, 1950.

John Sinopoli filed his complaint in this Court on June 26, 1952. He asked that an award be made for back salary in the amount of $379.25, which covered the period from May 7, 1949 to June -30, 1949.

Besides the complaint, the record includes respondent’s motion for an extension of time within which to plead, order of the Chief Justice granting said motion; claimant’s brief, transcript of evidence, and the Commissioner’s Report.

Respondent’s exhibit No. 1 states that no de facto employee was appointed to the vacancy of John Sinopoli during the period from May 7 to June 30, 1949, and that the Department of Agriculture had no information that claimant was gainfully employed during any part of said period. It further stated that the Department’s Division of Grain Inspection found, upon inspection of the complaint, that it contained no erroneous factual averments.

The claimant has fully proved his case, as shown by the record. He was unjustly prevented by respondent from performing his duties as Grain Sampler I in the Division of Chicago Grain Inspection, Department of Agriculture of the State of Illinois, from May 7, 1949 to June 30, 1949, both inclusive, for which loss of time he should be compensated at the rate of $210.00 per month for that period, as claimed, in the amount of $379.25.

An award is entered in favor of John Sinopoli, claimant, for $379.25.


text:
    (No. 4491
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 6, 1953.

    John A. Heuer and William A. Schuwerk, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, County of Randolph, Illinois, by the chairman of its Board of County Commissioners and its State’s Attorney, seeks to recover from respondent the sum of $6,449.00. This action is based on a specific statute, which confers jurisdiction on this Court to hear cases brought thereunder. Ill. Rev. Stat., 1949, Chap. 65, Secs. 37-39; Chap. 37, Sec. 439.8.

The purpose of such statute is to reimburse certain counties in Illinois for expenses, costs and fees incurred because of the large volume of petitions for writs of habeas corpus in forma pauperis filed therein. The Counties of Will and Randolph are the principal beneficiaries of such statute.

Such counties have previously been given five awards in this Court, and those cases have decided that certain fees, expenses and costs are reimbursable under such statute. County of Will vs. State, 18 C.C.R. 189; County of Will vs. State, 19 C.C.R. 192; County of Will vs. State, 20 C.C.R. 105; County of Randolph vs. State, 19 C.C.R. 114; County of Randolph vs. State, 20 C.C.R. 243.

A stipulation of facts has been filed herein, and is hereby approved.

The stipulation discloses that the Illinois State Penitentiary is located in Randolph County. Between January 24, 1950 and November 19, 1951, 375 petitions for writs of habeas corpus were filed in forma pauperis in the office of the Clerk of the Circuit Court of Randolph County by inmates of such institution. None of the petitioners were at the time of their commitment residents of, or committed by any court in Randolph County. In 27 cases the Clerk’s filing fee was paid by the petitioner. Writs were issued, and hearings were held in 191 cases. In each of the 191 cases, the State’s Attorney of Randolph County represented the People of this State at the hearing, and, in addition, the Clerk of the Circuit Court was required to furnish a photostatic copy of the petition to the Attorney General of the State of Illinois at a cost of $1.00 per petition.

In the above cited cases, we found that the Clerk of the Circuit Court was entitled to a $5.00 filing fee in each case, and reimbursement for the furnishing of photostats at cost. In County of Randolph vs. State, 19 C.C.R. 114, we found the State’s Attorney was entitled to a fee of $20.00 for each case in which he appeared at the hearing representing the People.

Previously, the Sheriff of Randolph County claimed reimbursement for serving and returning the writs of habeas corpus, and for mileage. In County of Randolph vs. State, 19 C.C.R. 114 and 20 C.C.R. 243, it was held that the Sheriff was not entitled to any fees for serving the writs, or for mileage, but that he was entitled to $1.00 for returning each writ.

In this case the Sheriff no longer seeks any reimbursement for serving the writs, or for mileage. He still seeks the $1.00 fee for returning each writ, and also claims $2.50 in each of the 191 cases wherein the writs were issued and hearings held, because the Sheriff actually attended before the Judge of the Circuit Court with each of the prisoners in the 191 such cases.

The Sheriff is clearly entitled to be reimbursed for these fees, since Ill. Rev. Stat., 1949, Chap. 53, Sec. 37, provides in part as follows:

“The fees of sheriffs in counties of the first and second class shall be as follows:
For attending before a judge with prisoner, on a writ of habeas corpus, in counties of the first and second class, two dollars and fifty cents per day.....”

Our opinion in County of Randolph vs. State, 19 C.C.R. 114, wherein we allowed the State’s Attorney $20.00 in each case in which he represented the People, is also authority for allowing the Sheriff $2.50 for attending with each prisoner, regardless of how many prisoners there might be before the Judge of the Circuit Court at any one session of court.

The Clerk of the Circuit Court of Randolph County is entitled to receive $5.00 for each petition filed, or the sum of $1,875.00, but he has already received $135.00 in 27 cases, leaving a balance due of $1,740.00. Ill. Rev. Stat., 1949 and 1951, Chap. 53, Sec. 31. In addition, he is entitled to receive $1.00 for photostats in 191 cases, or the sum of $191.00.

The Sheriff of Randolph County is entitled to receive $1.00 for returning each of the 191 writs of habeas corpus that were issued, or the sum of $191.00, and an additional sum of $2.50 in each of the 191 cases wherein he attended before the Judge of the Circuit Court with the prisoner, or the sum of $477.50, or a total sum of $668.50. Ill. Rev. Stat., 1949 and 1951, Chap. 53, Sec. 37.

The State’s Attorney of Randolph County is entitled to receive $20.00 for each of the 191 cases in which he appeared at the hearing representing the People, or the sum of $3,820.00. Ill. Rev. Stat., 1949 and 1951, Chap. 53, Sec. 8.

An award is, therefore, entered in favor of the County of Randolph for the sum of $6,419.50.


text:
    (No. 4524
    Abe M. Saperstein, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 6, 1953.

    Sturman and Bloch, Attorneys for Claimant.
    Latham Castle, Attorney General; J. R. Kerwin, Assistant Attorney General, for Respondent.
   Farthing, J.

Claimant, Abe M. Saperstein, asks damages from respondent, because of monies expended in the incorporation of the “CHICAGO BRUINS BASKETBALL CLUB, INC.”, having first been informed by the Secretary of State’s office that such name was available, which later proved to be a mistake. Claimant was without fault in the matter, and made no use of the corporation, or its name, when the fact was discovered that another corporation by that name had been chartered, and was in existence, so that the name could not be used by claimant.

On August 7, 1950, claimant retained an attorney to incorporate his company under the name quoted under the laws of Illinois. The answer to the inquiry of this attorney as to the availability of the name was favorable, and on August 14, 1950, seven days later, the application in duplicate, and the check covering fees and franchise tax due the State were filed in the Office of the Secretary of State. The charter evidenced by Certificate No. 30839 was issued on August 15, 1950. A duplicate copy was mailed to the attorney, and recorded in Cook County.

A few days later, it was discovered that the Master Card Index, which had been examined by one of the employees in the Secretary of State’s Office when the inquiry as to name was made, showed that a corporation of that name had existed, but had been dissolved. However, the Visual Card Index showed the opposite— that said corporation was still in existence. On August 21, 1950, the attorney was notified of the mistake by letter from the Secretary of State.

The expenses claimant incurred consisted of recording charter in Cook County, $4.40; seal, minute book, and stock certificates, $33.04; fees and franchise tax paid the Secretary of State, $43.96; and attorney’s fee, $150.00; or a total of Two Hundred Twenty-Seven Dollars ($227.00).

The record consists of a complaint filed August 19, 1952, Departmental Report, transcript of evidence, and the Commissioner’s Report.

The facts are not in dispute. The claimant had no alternate source from which he could secure information as to the availability of the name sought to be used to incorporate other than through the office of the Secretary of State of Illinois. A mistake was made in that office, which caused the claimant to expend the sums named above, all of which constitute a total loss to him.'

An award is, therefore, entered in favor of Abe M. Saperstein, the claimant, in the amount of Two Hundred Twenty Seven Dollars ($227.00).


text:
    (No. 4346
    Corine W. Arnold, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

    No appearance for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General.
   Lansden, J.

On February 9, 1951, an award in favor of claimant, Corinne W. Arnold, widow of Clarence C. W. Arnold, deceased, was entered in the sum of $6,675.00. Arnold vs. State, 20 C.C.R. 229.

At the time of said award there was one child of decedent, Barbara Corinne Arnold, who became 18 years of age on December 4, 1952. The widow of the deceased was alone entitled to $6,000.00, but, by reason of the existence of the one child under the age of 18 years, the award was fixed at $6,675.00.

On March 2, 1953, respondent filed a motion to modify the award, because of the fact that the one child had reached the age of 18 years.

Following our opinion in Corcoran vs. State, 19 C.C.R. 159, we computed the modification of the award as follows:

At the time Barbara Corinne Arnold became 18 years of age $2,613.21 had already been paid on said award. These payments amount to .39149% of the total award of $6,675.00; .39149% of the $675.00 attributable to the one child amounts to $246.26; $264.26 subtracted' from $675.00 equals $410.74. The balance of the award remaining unpaid subsequent to December 12, 1952 amounts to $4,061.79, from which should be subtracted the sum of $410.74, leaving a balance of the award to be paid in the sum of $3,651.05.

The award heretofore entered in this case is, therefore, modified, and said sum of $3,651.05 shall be paid at the rate of $22.50 per week for a period of 162 weeks, plus one final payment of $6.05.

The Court is informed that the Department of Finance has continued payments of the original award subsequent to the date of December 12, 1952, but the continuation of such payments has not prejudiced the State, and was the proper thing to do all things considered.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act, jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary. This opinion is not to be construed as eliminating Barbara Corinne Arnold forever from a possibility of participation in the award. In the event of the death or remarriage of her mother, Barbara Corinne Arnold would be entitled to the unpaid balance of the award. Waechter vs. Ind. Com., 367 Ill. 256; Swift & Co. vs. Ind. Com., 288 Ill. 132; Beckemeyer Coal Co. vs. Ind. Com., 370 Ill. 113; Swift & Co. vs. Ind. Com., 309 Ill. 11. The rights of Barbara Corinne Arnold were fixed prior to her reaching the age of 18, and her rights can never be extinguished as long as any amount remains unpaid under this award as modified.


text:
    (No. 4469
    Joshua E. Wells, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

    Bull, Yost and Ludens, Attorneys for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Joshua E. Wells, seeks to recover from respondent for its alleged negligence, as a result of which claimant’s home was damaged by flooding.

The real estate, which claimant had owned for the past 25 or 27 years, is located west of Morrison, Illinois, and lies to the west and south of Illinois State Route No. 6, also known as U. S. Route No. 30, in Whiteside County.

The damages complained of are the results of floods in February, 1951 and July, 1951. Prior to 1939, Illinois Highway No. 6 passed along the east edge of claimant’s property in a northerly direction to the north side of Unionville Park, and then turned west across the north side of said Park. This Park is located north of claimant’s property, and is considerably higher in elevation. It appears that drainage from this Park and the highway, prior to the change in construction, flowed in a southerly direction toward claimant’s property. Claimant’s property is located on the north bank of Rock Creek, which is the natural outlet for all of the surface water arising in claimant’s property, and the territory to the north, including Union Park. Claimant has constructed a dike along the north bank of the creek, extending from the highway to the cliff west of his house. There is also a dike running north and west, which completely surrounds the house. In addition, claimant has constructed a 12 inch pipe under the dike, which serves as an outlet for the water from his property to the creek.

The evidence in this case consists of testimony of Joshua E. Wells, claimant, and Vance E. Hopper, a civil engineer for the Highway Department.

Claimant testified in detail as to the location of his property, the old highway, the new highway, the dikes, etc., as shown by the exhibit introduced in this cause. He also testified as to the drainage of the territory north of his property, both prior to and after the construction of the new highway in 1939. It appears that the drainage of the surface water, both before and after the new construction, was in a southerly direction across claimant’s property, and down the highway to Rock Creek. The evidence does not reveal any additional water being gathered for discharge, except that the rate of discharge might be greater now, because of the increased amount of highway surface. Claimant testified that the property had been flooded before by surface water, arid that, when Rock Creek became full, he blocked the pipe leading from his property to the Creek with sand bags. This is the situation, which prevailed in February, 1951 and July, 1951. On both of these occasions there was an unusually heavy rainfall, and the claimant, because the creek was flooded, put his sand bags in position in order to keep the creek from over-flowing on his property; and, by doing so, he prevented the water, which flowed naturally from the north across his property, from escaping, and is, in fact, at fault in getting the water on his property. In other words, the water could not escape, because of the dikes he had constructed, and the sand bags, which he had placed in position. All of these facts were verified by Mr. Hopper, highway engineer.

Commissioner Wise, who heard the evidence in the case, concludes his report as follows:

“After hearing all of the evidence, and visiting claimant's property on two occasions, it is my opinion that the State was not negligent in the construction of the highway, has not been guilty of any negligence in the construction of drainage outlets, and the damages to claimant resulted because of the heavy rainfall on the two dates in question, and because of his own acts in stopping the natural flow of the water off of his property.
It is my recommendation that his claim be denied.”

We agree with the recommendation of Commisioner Wise, and, therefore, an award to claimant, Joshua E. Wells, is denied.


text:
    (No. 4474
    Perry Bodie, doing business as “The Bodie Lines” of West Liberty, Iowa, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

    Josef T. Skinner, Attorney for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Perry Bodie, doing business as “The Bodie Lines” of West Liberty, Iowa, seeks to recover from respondent for its alleged negligence, as a result of which a tractor and trailer, driven by an employee of claimant, overturned, causing damage to the equipment and cargo.

The accident occurred on June 5, 1951. Donald Jenks, the driver, testified that on the day before the accident he left West Liberty, Iowa driving a 1948 tractor, and pulling a 1949, 34 foot trailer, loaded with 110 hogs for delivery to Armour and Company in Chicago; that he was driving eastwardly on U. S. Highway No. 34, and, after leaving Mendota, Illinois, and approaching the scene of the accident, he was passed first by a bus and then a car; that as these two vehicles approached a bump in the pavement, due to the repair of a pavement failure at a point about two miles east of Meriden, the bus pulled over to the north side of the pavement and stopped, the car pulled along side the bus on the south side and stopped; that he pulled up behind the bus, but was unable to stop, and then pulled over on the shoulder, and overturned in the ditch on the north side of the highway. He further testified that the accident occurred on said date of June 5th between 5:00 and 5:30 A.M.; that prior to the accident he was driving at a reasonable speed; and, that the driver's in front of him gave no signal of their intention to stop. He further testified that there were no warning signs or flares along the highway warning of the construction work.

At the time of the accident the weather was clear, and, although there is some dispute as to whether it was daylight or dark, the preponderance of the evidence is daylight, but before sunrise.

Mr. Bodie testified as to the damages, but knew nothing about the facts of the accident.

Ben H. Turner, an insurance representative of Princeton, Illinois, testified as to certain photographs, which were admitted into evidence.

Mr. Zumstein of the Ottawa Highway office testified as to the rules and regulations of the Highway Department.

Alvin Jensen, a highway engineer, testified as to the construction, design and placement of highway signs at and near the point in question on March 14, 1951, although he was not able to state whether they were in position at the time of the accident.

These signs consisted of the following: “Bump” at point of accident; “Rough Pavement” 200 feet east and ,west; “Slow” 400 feet east and west; and, “Rough Pavement” 1300 feet east and west of the point of accident.

James Leonard, an employee of the Highway Department, testified that the signs and flares were in position on the night of the accident, that he had personally put the flares out, and that after the accident several of them were in the ditch.

Melvin Mathesius, a farmer, who resides at the scene of the accident, testified that the accident occurred at approximately 5:30 A.M. on said date, and that at that time it was daylight. He further testified as to the 2 foot sign, 200 feet west of the scene of the accident.

Ira Fuller of Peru, Illinois, driver of a bread truck, testified that he passed over this highway practically every day; that he passed over same on the morning of June 5th someplace around 4:00 A.M.; that the signs and flares were all in position, and burning at the time.

To us, it is most significant that both the bus and car slowed down almost to a stop at the bump, which was the result of the pavement failure. This indicates that signs and flares were efficaciously placed to accomplish their purpose, or that the bump was sufficiently visible to be an adequate warning of its own presence. In either event, claimant’s driver would be chargeable with contributory negligence, and respondent would not be liable. Gibbs vs. State, 19 C.C.R. 21; Kennedy vs. State, 20 C.C.R. 156.

The placing of illuminated warning signs, which was proven by the preponderance of the evidence, would absolve respondent from any liability under the circumstances. Cruger vs. State, 20 C.C.R. 138; Rommel vs. State, 20 C.C.R. 220.

In view of the foregoing,, an award to claimant must be, and hereby is denied.


text:
    (No. 4492
    A. M. Kershaw, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1952.

      Petition of claimant for rehearing denied March 20, 1953.

    Harry G. Story, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.,
   Delaney, J.

The claimant, A. M. Kershaw, filed his complaint herein on January 30,1952, setting forth three counts, wherein he alleges that on June 19, 1950, June 28, 1951, and for several years prior thereto he was the owner of the following described real estate, to-wit:

West one-half (W.½) of the Southwest one-quarter (S.W.¼) of Section 22; also the Northwest one-quarter (N.W.¼) of the Northwest one-quarter (N.W.¼) of Section 27; also the East one-half (E.½) of the Northeast one-quarter (N.E.¼) of Section 28, all situated in Township 16 North, Range 10 West of the Third Principal Meridian, Morgan County, Illinois, containing 193 acres, more or less.

Through and across a portion of the above described lands in an easterly and westerly direction, there flows a certain stream of water known as Big Indian Creek, which flowed through a natural water course until the respondent constructed a highway bridge, fills and approaches for the bridge along Route No. 78. The bridge by the nature of its construction limits and constricts the free and uninterrupted flow of water of Big Indian Creek, and the opening left for the passage of water is insufficient to permit the normal unimpeded and uninterrupted flow of water from said creek in periods of high water.

Claimant further alleges that, on the occasions above referred to, his lands were flooded, and the impounded water moved off more slowly than normal drainage of surface water did prior to the construction of the bridge and approaches, leaving large bodies of water standing on the crops. That in an attempt to avoid flood conditions, the claimant constructed a levy or dike separating his land, but that despite this added barrier his lands were covered with several feet of water.

On May 13, 1952, respondent filed its motion to dismiss for the reason that the claim is barred by the statutory limitations contained in Par. 439.22, Chap. 37, Ill. Rev. Stat., 1951, alleging that the highway bridge, fills and approaches complained of were all completed more than twenty years prior thereto, the construction of the bridge being completed on August 21, 1929, and the earth fills being completed on December 23, 1929, and the pavement being completed on September 9, 1930, and attached its affidavit thereto.

In the case of W. Jeff Horney and Frances Parke Horney vs. State of Illinois, 9 C.C.R. 354, this Court has discussed at length the question of liability of the State of Illinois for taking or damaging private property for public use.

The only liability of the State for taking or damaging private property for public use is under Section 13 of Article 2 of the Constitution of Illinois. In all cases upon the constitutional provision that private property shall not be taken or damaged for public use, there can be but one recovery, and such recovery includes all damages resulting from the improvement, past, present or future. A claim for the recovery of damages to private property not taken for public use, alleged to have been caused by reason of construction of public improvement, accrues when the improvement in question is made; and, if claim therefor is not made within two years after the making of same, the claim is barred by the statutory limitations contained in Par. 439.22, Chap. 37, Ill. Rev. Stat., 1951. It appears from the record that the construction described herein was completed more than twenty years prior to the filing of this cause of action. A right of action for damages to private property not taken for public use, but alleged to have been damaged by reason of the construction of a public improvement, is in the owner of the property at the time of the making of the improvement, and a subsequent alienee of the property takes the same as it existed at the time of the conveyance, and has no right of action for damages resulting from the prior improvement, and accruing after the conveyance.

For the reasons assigned, the motion of respondent to dismiss the complaint of claimant is hereby sustained;


text:
    (No. 4504
    L. L. Benoist and R. E. Benoist, doing business as Benoist Brothers Hardware, a partnership, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

    L. L. Benoist and R. E. Benoist, doing business as Benoist Bros. Hardware, A Partnership, Claimants, pro se.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Farthing, J.

The claimants, L. L. Benoist and R. E. Benoist, doing business as Benoist Brothers Hardware, seek an award against respondent in the sum of $583.60 for merchandise, which was ordered from them in April, 1951, and delivered in July, 1951 to the Department of Public Health of the State of Illinois at the Mount Vernon State Tuberculosis Sanitorium.

A stipulation of facts has been filed herein, and is hereby approved. The file contains, in addition, the amended complaint of claimants.

The claimants have not been paid for the merchandise, and the time has expired for payment from the applicable appropriation. No defense is made to this claim, and, from the stipulation, the claim appears to be just.

An award is, therefore, entered in favor of the claimants, L. L. Benoist and R. E. Benoist, doing business as Benoist Brothers Hardware, for the sum of $583.60 against the respondent, the State of Illinois.


text:
    (No. 4506
    Everett K. Poynter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

    Michael F. Ryan, Attorney for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Farthing, J.

On April 18, 1952, Everett K. Poynter filed his complaint in this cause. Claimant seeks an award of $7,908.30 for back salary as a guard from April 16, 1947, on which date he states he was unlawfully discharged, to April 18, 1950.

The file contains for our consideration, the complaint, amended answer, amendment to the amended answer of respondent, Departmental Report, Supplemental Departmental Report, claimant’s reply to the amended answer, claimant’s petition for an order directing Hon. Michael J. Seyfrit, Director, Department of Public Safety, to file written answers to certain interrogatories, his answers thereto, transcript of evidence, Commissioner’s report, motion of claimant for an extension of time to January 14, 1953, in which to file his statement, brief and argument, stipulation with reference to such extension of time, order granting said extension, respondent’s motion for leave to file a further amendment to its amended answer, order of the Chief Justice granting respondent’s motion so to amend, objections of claimant to said last named motion, brief and argument for claimant, respondent’s brief and argument, and claimant’s reply brief.

Poynter passed the requisite civil service examination, and on October 25, 1942 was certified and appointed to the position of guard at the Illinois Penitentiary, Pontiac Branch. He worked for the respondent there until his discharge on April 16, 1947.

He filed a complaint in the Superior Court of Cook County on June 27, 1947 to review said decision, being Case No. 47 S 10543. On April 18, 1950, the Superior Court rendered a judgment finding that the removal and discharge of claimant as a guard was illegal and void. Claimant was accordingly restored to his former position as such guard on August 14, 1950.

On November 6, 1950, Poynter filed a mandamus suit in the Superior Court to recover back salary from April 16, 1947 to August 14, 1950. This was Case No. 50 S 18348. On March 12, 1951, the Court rendered a judgment ordering payment to claimant of salary at $237.00 per month from April 18, 1950 to August 14, 1950, making a total of $920.73, which respondent paid to Poynter.

On November 29, 1951, the Superior Court dismissed, without prejudice, Poynter’s claim for back salary from April 16, 1947 to April 18, 1950 for the reason that the biennial appropriations for the periods 1947-1949 and 1949-1951 had lapsed under the provisions of the 1870 Illinois Constitution.

The Position and Classification Division had dedared Poynter’s position vacant on May 29, 1947. Edgar F. Roddy was assigned to fill the vacancy as a guard on June 14, 1947. The Departmental Reports show that Roddy was assigned to fill the vacancy as a guard on Requisition No. 658 to the former Poynter classification of 11-7-722-100. His salary was $195.00 per month. On July 1, 1947, his salary was increased to $215.00 per month, and on July 1, 1949 to $237.00 per month.

From April 16, 1947 to April 18, 1950, Poynter was variously employed. The record shows his earnings during the period totalled $5,405.90. However, in the period from January 1 to March 10, 1948, his wages from the Pontiac Dairy Company amounted to $552.00. If he had been paid a guard’s salary for that period, which was $215.00 per month, he would have received only $499.36. The difference is $52.64. Likewise in the period from September 17 to December 29, 1949, he received wages from the Turner Farm Seeds Company, according to the testimony, in the amount of $919.05. But, as a guard, at a salary of $237.00 per month for this period, he would have received only $805.80, a difference of $113.25. The respondent is not entitled in any event to credit for wages claimant earned in either of the two'periods beyond what he would have received as a guard. The two amounts total $165.89.

If claimant had continued to work as a guard, his total wages would have amounted to $7,908.30 for the period in question. His total earnings in the same period shown by this record amounted to $5,405.90, and subtracting the $165.89 therefrom, leaves a balance of $5,240.01. The difference between his wages as a guard and his earnings during the period is $2,668.29.

Claimant contends that the Departmental Report and Supplemental Report in evidence are not supported by Rule 16 of this Court, but as to this he is in error.

Counsel is likewise in error in contending that respondent has, in law, no right to ask and receive leave to file an amendment to its amended answer setting up the affirmative defense of claimant’s outside employment and earnings. Granting leave to amend is discretionary, and claimant’s objections were properly overruled.

Claimant’s counsel contends that respondent failed to prove its affirmative defense that a de facto employee replaced a de jure employee, did the work the de jure employee would otherwise have done, and received the salary he should have received, and relies on the case of People ex rel Verdung vs. Dunham, 294 Ill. App. 613. (Petition for leave to appeal denied, 296 Ill. App. 33.) The duties of claimant and those assigned to Edgar F. Roddy, who was given claimant’s classification number when Roddy was certified, were different. This is not of as great a significance, as the fact that Roddy continued to work as a guard after claimant’s reinstatement until October 21, 1950, when he entered the military service. In our opinion, respondent failed to prove this defense.

Claimant’s counsel also contends that the position of a guard is an office, and that Poynter was not an employee. Reliance is placed on City of Chicago vs. Luthardt, 191 Ill. 516, and People ex rel Jacobs vs. Coffin, 282 Ill. 599. Counsel also contends that Kelly vs. Chicago Park District, 409 Ill. 91, is not in point. It is counsel’s position that, if an office is involved, Poynter’s outside earnings cannot be deducted from the salary he would have received during the time he was wrongfully separated from his employment as a guard.

We cannot agree with this contention. The holdings in People ex rel Jacobs vs. Coffin, 282 Ill. 599, and Kelly vs. Chicago Park District, 409 Ill. 91, demonstrate that a guard is an employee. We cannot agree with counsel’s contention that claimant has pleaded and proved that an office is involved herein, rather than employment. In the reply brief counsel states “The duties of a guard, as classified by the Civil Service Commission, created by authority contained in the Civil Service Act and State .appropriations, are governmental in nature, and of definite duration (that is for good behavior).” This does not meet the requirements to establish the claim that this guard held an office, instead of being an employee.

There remains due to Everett K. Poynter, the claimant, the sum of $2,668.29 from the respondent, the State of Illinois, and an award in that amount is hereby made in favor of the claimant.


text:
    (No. 4514
    J. L. Simmons Company, Inc., a Delaware corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

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

Although there have been numerous cases before this Court in which the State of Illinois has virtually conceded its liability, this is the first case in which a claimant has made a motion for summary judgment.

On October 7, 1948, claimant and respondent, acting through the Department of Public Works and Buildings, entered into a contract bearing No. 65546, whereby claimant was to construct the Mt. Vernon State Tuberculosis Sanitarium at Mt. Vernon, Illinois. Claimant completely performed the work required of it under the contract, and the Sanitarium has been accepted, and is now being used by respondent.

This case is divided into two phases. The first phase is a claim for an additional sum of $25,889.70 for excavating an unusually hard substance, which was encountered in the course of preparing the foundation of the building. This phase is not involved in the motion for summary judgment.

The second phase of the case involves the sum of $22,334.64, and arises from the fact that in the latter part of 1951 respondent tendered to claimant a State warrant for such sum as final payment under said contract. Claimant, acting on the advice of counsel, refused to accept and cash said warrant, and returned same to respondent, because claimant felt that the acceptance of said warrant might act as a release or waiver of its additional claim involved in the first phase of this case, inasmuch as there was in the contract a provision, which, in substance, provided that the acceptance by claimant of the tendered warrant would operate as a complete release, discharge and waiver of any claim for further moneys under the contract. That the advice of claimant’s counsel may well have been correct is indicated by previous decisions of this Court, such as, Henkel Const. Co. vs. State, 10 C.C.R. 538; and WordenAllen Co. vs. State, 16 C.C.R. 138.

Thereafter, claimant filed its complaint herein seeking recovery of the amounts involved in the two phases of the case. Respondent filed a motion to dismiss, which was, after oral argument, overruled on November 26, 1952, because we felt that facts alleged and questions presented necessitated a disposition of the case on its merits.

On January 30, 1953, claimant filed its.motion for summary judgment, supported by affidavit, in which an immediate award of $22,334.64 is sought for the amount involved in the second phase of the case. Respondent has filed no counter-affidavits, and we believe we are completely safe in assuming that respondent concedes that claimant is entitled to an award on the motion for summary judgment.

Rule 2 of the Rules of this Court provides that pleadings and practice, as provided by the Civil Practice Act of Illinois, shall be followed in this Court, except as otherwise provided in our rules. Since none of our rules relate to summary judgments, the procedure to be followed is spelled out in Sec. 57 of the Civil Practice Act, Ill. Rev. Stat., 1951, Chap. 110, Sec. 181, and Rules 15 and 16 of the Rules of the Supreme Court. Claimant has correctly followed such procedure, and respondent has raised no defense to the motion.

Since the entry of an award on claimant’s motion for summary judgment will dispose only of phase two of the case, and still leave phase one to be determined, Rule 16 of the Rules of the Supreme Court provides several alternatives in such a circumstance “as justice may require”. We believe that justice requires the entry of an immediate award, which is equivalent to the second alternative in said Rule 16.

An award is, therefore, entered in favor of claimant, J. L. Simmons Company, Inc., in the sum of S22.334.64.

Jurisdiction of phase one of this case is specifically reserved for future determination.


text:
    (No. 4515
    The Texas Company, a Delaware corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1953.

    George A. Bender, Attorney for Claimant.
    Latham Castle, Attorney General; Granville Beardsley, Assistant Attorney General, for Respondent.
   Farthing, J.

On June 12, 1952, the Texas Company, a Delaware Corporation, filed its complaint in this Court seeking an award of $143.51 for gasoline and other petroleum products sold and delivered to respondent’s Division of Highways, and other accredited departments on orders dated October 5, 1949 and ending June 30, 1950, and dated May 5, 1950 and ending June 30, 1951, as per claimant’s bill of particulars, also filed June 12,1952.

On February 19, 1953, the parties filed their stipulation of facts in lieu of a record, which with the complaint, the report from the Engineer of Claims, filed on July 12, 1952, and said bill of particulars, completes the file for our consideration.

The stipulation is hereby approved, and shows that $2.50 is barred by limitation, but that there is due the Texas Company the balance of its claim, or $141.01, which is unpaid.

The claimant did not submit bills for the merchandise to the respondent until after the appropriation to pay for the purchases had lapsed.

An award is, therefore, entered in favor of the claimant, The Texas Company, for the sum of $141.01 against the respondent, the State of Illinois.


author: Delaney, J. Lansden, J.

text:
    (No. 4355
    Lenora Chavis, a minor, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

      Supplemental opinion filed March 31, 1953.

    Don Scott and Alpheus Gustin, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Lenora Chavis, a minor, by and through her mother and next friend, Marcella Gibbs, filed her claim on October 16, 1950. The decedent, Jerome Chavis, was employed by the respondent in the Department of Public Works and Buildings, Division of Highways, at the time of his death. On September 15, 1950 Mr. Chavis was one of a group of men employed in placing temporary patches on the concrete pavement of U. S. Route No. 45 in Saline County. At approximately 11:45 A.M. on that date, the Division of Highway’s truck, which was used to transport men and materials, was stopped facing south in the lane for south bound traffic. The point was south of a break in the pavement, and approximately one mile south of the Village of Carrier Mills. Mr. Chavis and a fellow employee were removing broken concrete preparatory to filling the hole with a mixture of gravel and bituminous material. A third employee was stationed a short distance north of the group to direct traffic past the point of operations. The operator of a car approaching from the north failed to respond to the flagman’s signal to slow down, and drive past the workmen. Instead, the operator of the car drove straight ahead, and struck Mr. Chavis. Mr. Chavis was thrown into the Division truck, and then over to the highway shoulder. A passing motorist took Mr. Chavis to the Harrisburg Hospital, Harrisburg, Illinois, where Dr. W. J. Blackard was placed in charge of the case. Mr. Chavis died suddenly the following morning, September 16, 1950, from an embolus.

During the year immediately preceding his death, Mr. Chavis earned the sum of $2,376.00. Mr. Chavis was paid full salary for September 16, 1950, only, in the amount of $6.60. The Division has paid the Harrisburg Hospital $246.00 for its services to Mr. Chavis. Dr. W. J. Blackard is a staff employee of the Harrisburg Hospital, and his fee is included in the hospital charge.

The record consists of the complaint, Departmental Report, transcript of evidence and claimant’s exhibits Nos. 1 and 2.

No jurisdictional questions are presented by the record, and it is admitted by stipulation that decedent’s injuries arose out of and in the course of his employment.

Decedent had one child under 18 years of age dependent upon him for support.

Under the provisions of Section 7 (a) of the Workmen’s Compensation Act, the amount of compensation to be paid for an accidental injury resulting in death shall be $4,000.00. Since the death occurred subsequent to July 1, 1949, this must be increased 50%, making a total of $6,000.00.

The compensation rate is the maximum of $15.00 per week, which also must be increased 50%, or the sum of $22.50 per week.

An award is, therefore, made to claimant, Lenora Chavis, in the amount of $6,000.00, less the sum of $6.60 for non-productive time, or a total award of $5,993.40, payable to Marcella Gibbs (mother and next friend of claimant, Lenora Chavis, a minor, and for her use and benefit), as follows:

$662.13, which has accrued, and is payable forthwith;
$5,331.27, is payable in weekly installments of $22.50, commencing on April 17, 1951 and continuing 236 weeks, with a final payment of $21.27.'

The testimony was taken and transcribed by Donna J. Wirth, who made charges therefor in the amount of $9.75. These charges appear reasonable and proper.

An award is, therefore, entered in favor of Donna J. Wirth in the amount of $9.75, which is payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.

Supplemental Opinion

Lansden, J.

On April 10, 1951, an award was entered in favor of claimant for the net amount of $5,993.40 under the Workmen’s Compensation Act for the death of her father.

On October 17, 1952, respondent filed a motion, accompanied by a stipulation, to modify said award by reason of the fact that a settlement had been made with the third party, who negligently caused the death of claimant’s father. No payments have been made under said award since the motion was filed.

It is the established rule in this Court that, when a settlement is received from a third party, an award to a claimant under the Workmen’s Compensation Act must be reduced accordingly. Wood vs. State, 19 C.C.R. 161; Pulley vs. State, No. 4413, supplemental opinion filed June 11, 1952.

However, the stipulation of facts herein is approved in part and disapproved in part, and the award will be modified, as hereinafter provided, in accordance with an investigation, which the Court caused to be made on its own motion.

Out of the total settlement of $4,200.00, only $3,650.00 is chargeable to claimant. The remaining $550.00 was paid to a purported heir of the deceased with the approval of the County Court of Saline County, Illinois. Such purported heir was denied participation in our award by an order entered July 8, 1952.

The sum of $2,304.63 was paid to claimant before payments' were stopped, leaving a balance of $3,688.77. From this latter sum should be deducted the sum of $3,650.00 chargeable to claimant, leaving a balance due on the award of $38.77.

However, further payments cannot be made until the total sum of $5,954.63 has accrued. Kays vs. State, 18 C.C.R. 127; Hester vs. State, No. 4435, opinion filed January 8, 1952. We calculate that the sum of $5,954.63 will accrue on November 11, 1955.

The award heretofore made is modified by providing that no further payments shall be made thereunder until one week after November 11, 1955, at which time $22.50 can be paid to claimant, plus payment the following week of one final payment of $16.27, which will completely liquidate respondent’s liability under the award as modified.

Jurisdiction of this case is specifically reserved for the entry of such further orders .as may be necessary.


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    (No. 4416
    Raymond J. Roberts, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 31, 1953.

    Robert Mc Glory, Attorney for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Raymond J. Roberts, seeks to recover under the provisions of the Military and Naval Code, Ill. Rev. Stat., 1949, Chap. 129, Secs. 142 and 143, for injuries sustained by him, while serving as an enlisted man in the 33rd Division of the Illinois National Guard.

On August 20, 1949, claimant, who held the rating of corporal, under competent orders went with a detail of men to the Oak Brook Polo Club in Du Page County on a recruiting mission. While returning from such mission, the jeep, in which claimant was riding, was forced off of the road, overturned, and landed on top of him, causing terrific injuries.

A board of medical officers later convened, and found that claimant was injured in the line of duty, and not the result of his own misconduct. In addition, such board recommended that claimant be paid his full pay for six months, and, inferentially, if not actually, recommended that this Court consider his case with a view to giving him an award under Ill. Rev. Stat., 1949, Chap. 129, Sec. 143.

Not only has claimant received full pay for six months, but respondent has also paid hospital and doctor bills exceeding the sum of $6,000.00. Claimant was hospitalized for 166 days.

Although Public Law 108, 32 U.S.C. Sec. 160 a-c, U.S. Code Cong. Service, 81st Cong., 1949, Vol. I, p. 207, extends the benefits of certain federal pension laws to state national guardsmen, it is limited to specific types of activities, and a recruiting mission is not included within its purview. In fact, the National Guard Bureau, Department of the Army, Washington, D. C., has definitely ruled that claimant is not entitled to the benefits of Public Law 108.

Therefore, claimant's remedy is under and by virtue of the Illinois Military and Naval Code.

Ill. Rev. Stat., 1949, Chap. 129, Sec. 142 relates to injuries to national guardsmen, but claimant has received all he can under such section, and, in view of the favorable action of the board of medical officers, claimant is entitled to consideration for an award under Ill. Rev. Stat., 1949, Chap. 129, Sec. 143, which section allows an award over and above the amount paid by virtue of Sec. 142.

The interrelation of these two sections is fully discussed in Echols vs. State, 10 C.C.R. 113, and Insalato vs. State, 12 C.C.R. 27. The record discloses that claimant has complied with all the prerequisites necessary to vest jurisdiction of his claim in this Court.

Therefore, the sole problem to decide in this case is the amount of the award to claimant.

Claimant, who was 21 years of age at the time of his accident, was attending school. His injuries were, as stated before, terrific, and that he survived them is attributable to the outstanding care and skill of his doctors. Several major and minor operations were performed on claimant. He still requires periodic treatments, and will probably require some periodic medical care for years to come.

Claimant sustained a fractured pelvis, and his pelvic area is permanently tilted. He walks with a limp, because his left leg is one and one-half inches shorter than his right. A ruptured urethra causes claimant continuous trouble, and requires medical cleansing and dilation at regular intervals, There were minor spinal and nerve injuries, which cause pain, and claimant has urinary incontinence, and impaired function of his testes.

This Court has many times used the Workmen’s Compensation Act as a guide in arriving at an award in a case of this type. A long line of cases, commencing with Williams vs. State, 3 C.C.R. 209, and extending through Quigley vs. State, 17 C.C.R. 27, has so used the Workmen’s Compensation Act as a guide. However, it is only a guide, and neither a ceiling over, nor a floor under our awards to national guardsmen. Dudley vs. State, No. 4287, opinion filed June 11, 1952.

Furthermore, in an award of this type can be included an amount for medical treatment, for which a claimant has become obligated, or will become obligated in the future. Boyers vs. State, 9 C.C.R. 530.

To summarize, we believe that claimant would be entitled to an award of $6,000.00 for his injuries under the Workmen’s Compensation Act, and we feel that such an amount should be given him by this Court for his injuries. In addition, for his medical expenses, we cannot, of course, arrive at a precise amount. However, since respondent has already paid over $6,000.00 for claimant’s medical bills, we believe that an award of $3,000.00 might well cover those medical bills, which have not been paid by respondent, as well as future medical bills.

An award is, therefore, entered in favor of claimant, Raymond J. Roberts, in the sum of $9,000.00.


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    (Nos. 4452-4453 — Consolidated
    Claimants awarded §1,500.00 and §3,500.00, respectively.)
    Margaret C. Brown, admx., estate of Rct. Donald A. Brown, N.G. 26 349 763, No. 4452; Mabel T. Gross, admx., estate of Private John R. Gross, deceased, 2nd. Bn., 132d Inf. Regt., Hd. Co., N.G. 26 348 960, No. 4453, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 31, 1953.

    Walter A. Edmiston, Attorney for Claimants.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

These two cases were consolidated, because they arose out of the same accident, and involve virtually the same factual and legal questions.

On July 5, 1950, Donald A. Brown was a recruit, and John R. Gross was a private in the 132nd Infantry Regiment of the 33rd Division, Illinois National Guard. Such Regiment and Division were undergoing summer training at Camp McCoy, Wisconsin, pursuant to orders of the National Guard Bureau, Department of the Army, Washington, D. C.

On the day in question, while in the line of duty under competent orders, and not under the influence of liquor or drugs, a jeep, in which Brown and Gross were riding with a superior officer, was struck by an ambulance belonging to the U. S. Army, and operated by Regular Army personnel, which personnel was a part of the Regular Army complement permanently based at Camp McCoy as the housekeeping detail. As a result of the collision, both Brown and Gross were killed.

It is clear that the negligence of Regular Army personnel caused the deaths of Brown and Gross, and it is also conceded that Brown and Gross were engaged in activities by virtue of which benefits could be and were being paid under Public Law 108, 32 U.S.C., Sec. 160a-c, U.S. Code Cong. Service, 81st Cong., 1949, Vol. 1, p. 207.

Under decisions of the federal courts, heirs and dependents of Brown and Gross would have no cause of action under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671, etseq., against the United States, but would have only the benefits of Public Law 108 available to them. Feres vs. U. S., 340 U.S. 135; 95 L. Ed. 152, Cf. Brooks vs. U. S., 337 U. S. 49; 93 L. Ed. 1200.

This Court has twice held that the entitlement to benefits under Public Law 108 does not act as a bar to recovery against respondent. Dudley vs. State, No. 4287, opinion filed June 11, 1952; Sypniewski vs. State, No. 4527, opinion filed March 20, 1953. The remedies available under the Military and Naval Code of Illinois were held to be cumulative.

However, claimants herein seek recovery under the Illinois Injuries Act. (Wrongful death), Ill. Rev. Stat., 1949, Chap. 70, Sec. 1. Aside from the fact that the accident in these, cases occurred outside Illinois, and such statute has no extra territorial application, this Court has previously held that the only remedy an heir or dependent of a deceased national guardsman can have against respondent is by the Military and Naval Code, Ill. Rev. Stat., 1949, Chap. 121, Sec. 143. Charles, Admx. vs. State, 8 C.C.R. 371.

Also, this Court has held that under Sec. 143 of Chap. 129 it is immaterial whether a claimant sues as an heir or dependent, or that the personal representative brings the action for their benefit. Reddick vs. State, 2 C.C.R. 84; Witte vs. State, 1 C.C.R. 249.

Said Sec. 143 reads as follows:

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

Applying the facts of these cases to the above statute, we find as follows:

Margaret Brown was the mother of Donald A. Brown, and was divorced from his father. The deceased, who was 16 years of age at the time of his death, was in the custody of his mother, and she was paid $325.00 per month as alimony, of which $50.00 per month was for the support of the deceased. Mrs. Brown received $450.00 from the United States under Public Law 108, and the father, who paid the funeral bill, was paid $100.00 by the United States. It is apparent that the parents of Donald A. Brown had high hopes for their son, including boarding school and college education, and the record also discloses that the deceased son was of real assistance materially and emotionally to his mother. Although it could be demonstrated that Mrs. Brown suffered no direct financial loss as the result of the death of her son, numerous decisions under the Illinois Injuries Act, and previous decisions of this Court under the Military and Naval Code have held that the death of a minor son gives rise to more than nominal damages. Sanders vs. State, 6 C.C.R. 151; Jamison vs. State, 7 C.C.R. 190; Franklin vs. State, 10 C.C.R. 535. We, therefore, believe that Margaret A. Brown is entitled to an award of $1,500.00.

Mabel T. Gross was the mother of John R. Gross, who was in his twenties at the time of his death. Mabel T. Gross was divorced from her husband, and for several years had received no financial contribution from him. John R. Gross was married five weeks before his death, and his widow was receiving $75.00 per month under Public Law 108, plus $100.00 paid by the United States to apply on the funeral bill. The record indicates that John R. Gross had been accustomed to contribute ten to fifteen dollars per week to assist his mother, and that, although no payments were' made during the five weeks of his marriage, it is a certainty that the deceased son would have contributed to his mother’s support after his marriage, since both he and his wife were employed. Mabel T. Gross was sickly, and earned only about $1,500.00 per year in part time employment. Under all the circumstances, we believe that Mabel T. Gross is entitled to an award of $3,500.00.

In arriving at the amounts of the awards in these cases, we have not overlooked the long line of cases, commencing with Williams vs. State, 3 C.C.R. 209, which indicate that the Workmen’s Compensation Act is a guide. However, it is only a guide, and is neither a ceiling over, nor a floor under our awards. Dudley vs. State, No. 4287, opinion filed June 11, 1952. We are also mindful of numerous decisions that comment on the decreased purchasing power of the dollar today. It is with all these criteria in mind that we have arrived at the amount of the awards herein.

An award is, therefore, entered in favor of claimant, Margaret C. Brown, individually, in the sum of $1,500.00.

An award is, therefore, entered in favor of claimant, Mabel T. Gross, individually, in the sum of $3,500.00.


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    (Nos. 4516-4517 — Consolidated
    Claimants awarded $3,000.00 and $6,000.00, respectively.)
    Pauline Howard and Lee R. Howard, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 31, 1953.

    Schmiedeskamp and Deege, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Farthing, J.

Claimants are husband and wife. Their complaints were filed on June 13, 1952, and amended October 27, 1952. They seek awards for injuries and property loss suffered in a collision between the automobile they were driving, and a truck of respondent on State Highway No. 61 on December 17, 1951 about 4:30 P.M.

The file for our consideration consists of a complaint and amendment thereof in. each case, transcript of evidence, abstract, claimants’ statement, brief and argument, and the Commissioner’s report.

At the hearing of this cause on March 20, 1953, leave having been given, counsel for claimants amended the two amended complaints by increasing the ad dannum from $2,500.00 to $7,500.00.

The claimant, Lee R. Howard, aged 62, a rural mail carrier for approximately 41 years, of Stillwell, Illinois, and Pauline Howard, his wife, were in Bowen, and were driving to Quincy, Illinois over State Highway No. 61 on December 17, 1951 about 4:30 P.M. When they reached a point one-half mile east of the Loraine Junction, claimants were driving west on the north half of the paved road. Mr. Howard was driving their 1950 Model Kaiser De Luxe automobile. At the point mentioned above, there is a hill. Snow was falling at the time, and the highway was slippery. The brakes, tires and automobile were in good condition. Mr. Howard was driving at about 40 miles per hour. When he reached the crest of the hill, he saw the respondent’s highway truck headed west also, but standing on the pavement about 40 feet away. Mr! Howard put his brakes on lightly, but, because of the icy pavement, the car skidded, and the brakes did not help. Howard saw a third car was approaching at this point from the west, and there was an embankment sloping up from the pavement on the north at an angle of 45 degrees with no ditch there. Howard could neither pass the respondent’s truck on the north, nor on the south, and his brakes were of no help. Claimant’s car struck respondent’s truck. Mr. Howard was thrown into the windshield, and against the steering wheel, which broke. His head was cut, an artery was severed, ligaments in his neck were strained, he suffered bruises, cuts, contusions, an injury to his cervical spine, a cerebral concussion,' was in the hospital, suffered from dizziness three weeks, and was off from his work six weeks. He earned $375.00 a month. Mrs. Pauline Howard’s forehead was cut so that twelve stitches were made necessary, and she sustained a brain concussion. Two of her teeth were chipped, and loosened. Her chest was bruised, a rib was broken, both bones were broken in one wrist, and one leg and ankle were injured. She remained in the hospital three weeks and one day. Mrs. Howard could do very little about her housekeeping for another month, and for six months had to hire help. She is 55 years old. The hospital bills and doctor’s bill amounted to $695.00, and Mrs. Howard’s dental bill was $50.00. Howard’s automobile had to be sold for salvage, and brought $210.00, a loss of $985.00.

Mr. Howard could not see the truck until he got to the top of the hill. When complainants reached the top of the hill, there was no level space, but the highway sloped down towards the west immediately. Howard testified there was a level shoulder on the north side of the paved surface, approximately 15 feet wide, at a point 60 feet west of the collision point.

Dr. Aldo K. Germann treated both complainants. His charges totalled $447.75. In his opinion, Mr. Howard suffered an injury to the intervertebral disc lying between the seventh and eighth cervical vertebrae. In his opinion, both Mr. and Mrs. Howard suffered permanent injuries. Respondent had three employees:.Gay Brown, who drove; and Francis M. Hardy and Claude Caley, who were using a Ford truck, to which a snow plow was attached. On December 17, 1951, these men plowed snow off of the road, and spread cinders on Bear Creek Hill. They were going west on Route No. 61 about dusk. It was snowing hard, as shown by Gay Brown’s testimony. They passed the scene of this collision, stopped, backed their truck up the hill 40 feet or more, stopped again, and the driver, Brown, got out of the truck to look at the pavement. He saw the Howard car approaching from the rear. Mr. Howard put his brakes on, his car skidded across the road, and went from side to side. Brown said he could tell there would be a collision, and that he got back into the truck, shut the door, and put on the brakes. He said this was to keep himself, and his two helpers, who were in the seat' with him from getting hurt. He said this hill is about a quarter of a mile long, and admitted that farther down the truck could have been pulled off the pavement, near the foot of the hill. He said his lights were on, but admitted no flares or other warnings were shown, in addition to what were actually on his truck. No work had been done at the time on the north half of the pavement at this point. Snow had made the road slick. The Howard car pushed the truck about 20 feet down the hill. Mr. Hardy was not sure, but thought the truck was moving slowly, and about to stop when the collision occurred. He said he struck his head against its door frame, was knocked out, but came to, and got out of the truck. He testified the truck lights were on before and after the collision.

Mr. Claude Caley was unable to tell whether the truck had come to a stop. He testified that its lights were on. Like Brown and Hardy, he said no signal flares or flags had been put out by the respondent’s employees, other than what the truck had on it. He said they were about to spread some cinders on this hill. These witnesses placed the truck about 400 feet west of the crest of the hill, whereas claimants, and their witnesses, gave that distance as from 40 to 60 feet.

In spite of the difference as to the distance from the crest of the hill in question to the scene of the collision, the testimony of respondent’s own witnesses shows that the collision was imminent when the Howard car came in view. It was after 4:00 P.M., and snow was falling. The road was slick. Brown, the truck driver, said he had stopped his truck, shifted into reverse, backed up the hill, stopped his truck, stepped out of the cab. He saw the Howard car, feared a collision, got in, shut the truck cab door, put on the brakes. The truck was struck, and moved forward down the hill about 20 feet. A person of ordinary prudence, exercising reasonable care for his own safety and the safety of others on the highway, would not stop a truck attached to a snow plow, in snowy weather, on a slick hill, back it up the hill, stop again, get out, hasten back, and put on the brakes of the truck, when he had just observed a car at close range approaching down the hill from his rear.

We need not go into the counts of the amended complaint in detail. We are of the opinion that respondent’s employee, Gay Brown, was guilty of negligence, and that this is proved by his own testimony. This was the proximate cause of the injuries and loss the complainants have suffered.

Taking into consideration the property damage, medical and hospital bills, pain, suffering, loss of wages, and the permanent injury to his cervical spine, in our opinion $6,000.00 is due Lee R. Howard, the complainant in Case No. 4517. Pauline Howard, the complainant in Case No. 4516, did not incur as great property damage, and, while both bones were broken in one arm at the wrist, and she suffered two large cuts that had to be sutured, her permanent injury is not as great as that of her husband. Her injuries are not trifling and, in our judgment, she is entitled to $3,000.00. An award is, therefore, made in favor of the complainant, Lee R. Howard, in the one case for $6,000.00, and in favor of Pauline Howard, the complainant in the remaining case, for $3,000.00 against the respondent, the State of Illinois.


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    (No. 4519
    Gertrude Skaggs, admx., et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 31, 1953.

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

Gertrude Skaggs filed her complaint on June 19, 1952, as Administratrix of the Estate of Freddie Horace Skaggs, seeking to recover for damages sustained as a result of the death of her husband in an accident, which occurred on State Highway No. 29, approximately five miles southwest of Mason City, Illinois, on June 28, 1951.

The record consists of the complaint, answer of respondent, original transcript of evidence, copy of transcript of evidence, abstract of evidence, motion of claimant for an extension of time to February 4, 1953 in which to file statement, brief and argument, order of Chief Justice granting the motion of claimant for an extension of time to February 4, 1953 in which to file statement, brief and argument of claimant, and the oral arguments of attorneys representing the parties herein.

The evidence discloses that the decedent and claimant were married on July 1, 1943 in St. Louis, and at the time of the accident were husband and wife, although they were not living together, but he was contributing to her support. Mr. Skaggs was employed as a bridge carpenter on a railroad, and on June 27, 1951 worked near Barr Station, north of Springfield, and after work he drove to Pekin, Illinois to obtain his pay check. Sometime during the late evening of June 27, or the early morning of June 28, 1951 he was returning from Pekin to the work train, and was driving south on State Route No. 29. While driving south on said highway, and while attempting to cross a bridge over a creek, known as “Sleepy Hollow”, the bridge and approaches thereto collapsed, or had previously collapsed, allowing his car to fall into the stream. The car was carried down the stream some 500 feet, and the next morning he was found in the car drowned.

The physical facts would indicate that the bridge approach was still in position at the time Skaggs approached the bridge, since there was glass from his headlights on the northwest corner of the bridge, indicating that his car had collided with the bridge, and the road had then collapsed, allowing the car to fall some 15 feet into the water. The evidence as to the bridge indicates that it had been in place for quite a few years, but that there had been several complaints made about the approach being undermined, and that the bridge, abutments themselves were being undermined. The claimant’s case was supported by the testimony of Frank C. Snyder, Carl W. Seinert, and Howard McLaughlin, who lived in the immediate vicinity of the bridge. Snyder testified that on one occasion he took the highway section man to the bridge, and pointed out that the fill supporting the bridge approach was washing out, was undermined, and that on occasions dogs had chased rabbits back as far as 15 to 20 feet under the slab. There was also testimony to the effect that the bridge abutments were being undermined, and that the State had erected a dam at the east edge of the bridge abutments in order to raise the water level, and allow the natural fill to build up around the abutments, so that they would not become further undermined. In addition to building the dam, cinders and other objects were dumped into the bed of the stream in order to build up the ground level. There is also evidence to the effect that complaint was made that the cinders would not hold the wash, and that concrete and other more substantial materials were needed. These facts as to the condition of the approaches, fills, and abutments were substantiated by the witnesses for both claimant and respondent, although the respondent’s witnesses, including Mr. Shewmaker, engineer for the Highway Department, and the highway section man contended that they had made proper repairs of the conditions, as they occurred.

The evidence further discloses that on the evening and night of June 27, 1951 a very heavy rainfall occurred in the Sleepy Hollow Valley, and that there were special rules and regulations in effect with the Highway Department as to their activities when rain occurred in this neighborhood. The highway section men had made an inspection trip sometime around midnight, or prior thereto, but did not find anything unusual in the immediate vicinity. The fact that the bridge had collapsed was first discovered by Pearl Mar-cum, who was driving north on Highway No. 29, returning from Springfield, Illinois to her home north of the bridge. At that time she noticed something was wrong, and stated that the north edge of the bridge was some three or four feet below the road level, but she was unable to state whether or not the bridge approach had collapsed because of the darkness. She aroused neighbors in the immediate vicinity, the highway section men were called, and proper flares and warning signals were placed in position.

Sometime in the early morning of June 28, 1951 the car of Mr. Skaggs was discbvered some 500 feet downstream from the bridge, and Mr. Skaggs was found in the front seat of the car. An ambulance was called, and his body was removed to a funeral home.

Although the respondent is not an insurer of the traveling public on its highways, it has the duty of keeping its highways in a reasonably safe state of repair. We feel that the respondent is bound by a greater degree of care in the maintenance of bridges than the maintenance of other portions of the highway.

Respondent claims it did not have actual notice that the bridge had collapsed. The evidence, however, indicates that the respondent had constructive notice. The negligence of respondent was the proximate cause of the accident, and the death of Mr. Skaggs.

Claimant raises a further question as to the amount of the award that the Court of Claims is authorized to make.

In the 67th General Assembly, Section 8 C of the Court of Claims Act was amended by House Bill No. 900, in the following manner:

“All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable, and all claims sounding in tort against The Board of Trustees of the University of Illinois; provided, that an award for damages in a case sounding in tort shall not exceed the sum of $7,500.00 to or for the benefit of any claimant. The defense that the State or The Board of Trustees of the University of Illinois is not liable for the negligence of its officers, agents, and employees in the course of their employment shall not be applicable to the hearing and determination of such claims.”

This Act was approved by Governor Adlai E. Stevenson on July 16, 1951.

It is claimant’s contension that under the Court of Claims Act, as amended, the Court can now make an award in excess of $2,500.00; and, that while the Injuries Act specifically fixes the date of death as the determining factor, limiting the amount of recovery, there is a distinction between the date of death, as in the Injuries Act, and date of award, as in the Court of Claims Act.

It is the opinion of this Court that it was the legislative intent that the amended act would apply only when the date of the injury, which would be the date the cause of action accrued, is subsequent to the effective date of the amendment. It is also the opinion of the Court that there is no distinction between the date of death, as in the Injuries Act, and date of award, as in the Court of Claims Act. Therefore, any cause of action accruing subsequent to July 16, 1951 would be governed by the amended act. Shockley vs. State, No. 4387, opinion filed November 12, 1952.

An award is, therefore, made to claimant, Gertrude Skaggs, Administratrix of the Estate of Freddie Horace Skaggs, in the sum of Twenty-Five Hundred Dollars ($2,500.00).