text:
    (No. 5289
    The Protestant Hospital Builders’ Club, d/b/a Memorial Hospital, 4501 North Park Drive, Belleville, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Jones, Ottesen, and Fleming, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

On May 9, 1965, one Ella Miller was admitted to a hospital in the City of Belleville, Illinois, which was operated by claimant, The Protestant Hospital Builders’ Club, d/b/a Memorial Hospital, 4501 North Park Drive, Belleville, Illinois. An application was made to respondent on the same date for aid under the program of Assistance to the Medically Indigent Aged.

Claimant alleges that it furnished room and care, drugs, medical supplies and laboratory services to said Ella Miller from May 9, 1965 to May 22, 1965, and that the reasonable, usual and customary charges for such services and supplies in Belleville, Illinois and its vicinity is and was $344.03. In its complaint, claimant further alleges that a statement for such services and supplies was presented to the Department of Public Aid, but payment was denied because of the lapse of the appropriation for the biennium in which such supplies and services were rendered.

A stipulation in lieu of evidence was entered into between claimant and respondent in which it is stated: “Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $344.03.”

A report of the Department of Public Aid, signed by Gershom Hurwitz, Assistant to the Director, is attached to said stipulation. Paragraph 2 thereof states: “Claimant is justly entitled to the amount of $344.03, and the Department has not paid the said amount.”

This Court has repeatedy held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mark’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, vs. State of Illinois, Case No. 5261, opinion filed February 24, 1966; Centreville Township Hospital vs. State of Illinois, Case No. 5279, opinion filed May 10, 1966. It appears that all qualifications for an award have been met in the instant case.

Claimant, The Protestant Hospital Builders’ Club, d/b/a Memorial Hospital, 4501 North Park Drive, Belle-ville, Illinois, is, therefore, hereby awarded the sum of $344.03.


source: Caselaw Access Project

author: Perlin, C.J.

license: Public Domain

text:
    (No. 5291
    Edwin J. Casey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    St. Louis Medical Credit Bureau, for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, Edwin J. Casey, by and through the St. Louis Medical Credit Bureau, has filed a complaint in the Court of Claims in which he seeks payment of the sum of $100.00 for professional services rendered to one Myrtle Lyons on June 9, 1965.

A written stipulation was entered into by claimant and respondent, which states: “Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $100.00.”

Attached to the stipulation is a Report of the Department of Public Aid, dated April 7, 1966, and signed by Gershom Hurwitz, Assistant to the Director. It states that the amount sought by claimant is proper, and that claimant is entitled to payment of the sum of $100.00.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3') proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, vs. State of Illinois, Case No. 5261, opinion filed February 24, 1966; Centreville Township Hospital vs. State of Illinois, Case No. 5279, opinion filed May 10, 1966. It appears that all qualifications for an award have been met in the instant case.

Claimant, Edwin J. Casey, is, therefore, hereby awarded the sum of $100.00.


text:
    (No. 5296
    State House News Stand, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Nathan J. Kaplan, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Perlin, C.J.

During the 1965 session of the Illinois General Assembly, claimant, State House News Stand, furnished newspapers for the use of the office of the Minority Leader, House of Representatives. Claimant now seeks payment in the amount of $87.62, which represents a balance allegedly due for such services from January 1, 1965 to July 1, 1965.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

“That claimant sold and delivered newspapers to the office of Rep. Albert W. Hachmeister, Minority Leader, and that the bill in the sum of $87.62 has not been paid.
“That claimant failed to submit its statement of charges in time to the Speaker’s Office of the General Assembly to be paid from this biennium’s appropriations.
“That the House of Representatives Minority Leader, Albert W. Hachmeister, in a letter dated April 5, 1966, stated that his office received the newspapers from claimant, and that said claimant is entitled to payment of the amount claimed in the sum of $87.62.”

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation, vs. State of Illinois, Case No. 5261, opinion filed February 24, 1966; Centreville Township Hospital vs. State of Illinois, Case No. 5279, opinion filed May 10, 1966. It appears that all qualifications for an award have heen met in the instant case.

An award is, therefore, hereby made to claimant, State House News Stand, in the sum of $87.62.


text:
    (No. 5297
    St. Louis University Hospitals, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    St. Louis University Hospitals, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks to recover the sum of $245.98 for services and supplies rendered one Myrtle Lyons. Claimant alleges that it furnished room and care, drugs, supplies, laboratory services, and use of the operating* room from June 8,1965 to June 15,1965 for said Myrtle Lyons who had been found eligible for aid under the Illinois Department of Public Aid program of Assistance to the Medically Indigent Aged.

Claimant further alleges that a statement to respondent for services and supplies was denied payment on the basis that the claim was for services rendered prior to July 1, 1965 when the appropriation for the biennium had lapsed.

A letter from the Department of Public Aid indicates that the bill should have been paid, but was received too late to be processed.

A stipulation between the parties states that “Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $245.98.”

It appears that the sole reason for nonpayment of the bill was the lapse of the appropriation.

An award is, therefore, made to claimant, St. Louis University Hospitals, in the sum of $245.98.


author: Pezman, J.

text:
    (No. 5303
    Delnor Hospital, a Not-For-Profit Corporation of the State of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Redman and Shearer, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $660.90 for hospital services, including drugs, laboratory facilities, X-rays, nursing, room and dietary facilities, rendered to one Allan Tye from June 13, 1965 to June 25, 1965.

A stipulation of facts by and between claimant and respondent was filed with this Court on the 9th day of November, 1966, and thereby it was agreed as follows:

“That one Allan Tye was admitted to the Delnor Hospital on June 13, 1965 pursuant to notice of admission issued by the Supt. of Public Aid, Du Page County, State of Illinois, and that claimant supplied drugs and services from June 13, 1965 to June 25, 1965.
“That respondent was billed in the sum of $660.90, but that said billing was not processed prior to the closing of the biennium appropriation.
“That no assignment or transfer of the claim has been made.
6 ‘ That there is rightfully due to claimant the sum of $660.90.
“That, upon the foregoing agreed case filed here, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

A verified complaint of claimant indicates that the claim was not acted upon within the time allowed. It was subsequently disallowed by the Illinois Public Aid upon the grounds that the funds appropriated for such payments had lapsed.

This Court has held that, when the appropriation for the biennium from which a claim should have been paid had lapsed, it will enter an order for the amount due claimant.

Claimant is hereby awarded the sum of $660.90.


author: Dove, J.

text:
    (No. 5307
    The Goodyear Tire and Rubber Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    The Goodyear Tire and Rubber Company, Claimant, pro se.
    William G. Clark, Attorney General, for Respondent.
   Dove, J.

On May 2, 1966, claimant, The Goodyear Tire and Rubber Company, filed its claim seeking payment for materials furnished to the Department of Public Works and Buildings, Division of Highways.

A stipulation was entered into by and between the parties hereto, which provided as follows:

“1. That materials were delivered to respondent at the special instance and request of the Department of Mental Health and the Highway Department;
‘ ‘ 2. That the statements attached to the complaint as exhibit A in the amount of $233.52 are due and owing;
“3. That, as a result of a delay in billing, payment was not made prior to the closing of the biennial appropriations ;
“4. That there is rightfully due claimant the sum of $233.52.”

The Court is of the opinion that the claimant is justly entitled to a refund, since funds appropriated for such payments by the Division of Highways have lapsed.

An award is accordingly made to claimant in the amount of $233.52.


text:
    (No. 5328
    Olsen Window Cleaning Company, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Olsen Window Cleaning Company, Inc., Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $333.65 for services rendered to the Division of Highways, Department of Public Works and Buildings, in cleaning windows in the Division Building, which is located at 4051 North Harlem Avenue in the City of Chicago.

A stipulation of facts was made and entered into by and between claimant and respondent, and filed with the Court of Claims on the 1st day' of December, 1966.

Said stipulation reads as follows:

“That claimant, Olsen Window Cleaning Co., Inc., had completed the work as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of $333.65.
“That as a result of delay in billing by the claimant herein, payment was not made prior to the closing of the biennium appropriation.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof had occurred.
“That upon the foregoing agreed case filed herein, the Court shall decide thereon and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

This Court has held that, when the appropriation for the biennium from which a claim should have been paid has lapsed, it will enter an order for the amount due claimant.

Claimant is hereby awarded the sum of $333.65.


text:
    (No. 5331
    Colleen R. Wurster, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Colleen R. Wurster, Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

An August 3, 1966, claimant, Colleen R. Wurster, filed a claim seeking refund of the sum of $150.00, which had been deposited with the Secretary of State of the State of Illinois as required by Sec. 7-204 of the Motor Vehicle Laws of the State of Illinois.

From the stipulation of facts by the parties it appears :

1. That claimant, Colleen E. Wurster, deposited with the office of the Secretary of State of the State of Illinois in accordance with Sec. 7-204 the sum of $150.00;

2. That on July 1, 1963 claimant was entitled to a refund of said sum of $150.00, and was so notified by the office of the Secretary of State of the State of Illinois;

3. That, as a result of the failure of claimant to file claim for refund, the funds were transferred to the General Revenue Fund on August 20, 1963;

4. That claimant continues to be the sole person interested in this claim; that no assignment thereof has occurred; and, that claimant is the sole owner of such claim.

Sec. 7-503 of Chap. 95%, Ill. Rev. Stats., provides that any person having a legal claim against such deposit may enforce it by proper proceedings in the Court of Claims. The Court is of the opinion that claimant has complied with the statutes, and is justly entitled to a refund.

Am award is accordingly made by this Court to claimant, Colleen R. Wurster, in the amount of $150.00.


text:
    (No. 5344
    Alice Uher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Charles J. Gallagher, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Alice Uher, seeks to recover from the State of Illinois the sum of $1,140.00, which was deposited with the office of the Secretary of State as evidence of financial responsibility in accordance with the provisions of Chap. 95%, Ill. Rev. Stats.

A written stipulation relative to the facts in this case was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

“That claimant, Alice Uher, deposited with the office of the Secretary of State of the State of Illinois in accordance with Chap. 95%, Sec. 7-204, Ill. Rev. Stats. (1965), as amended, the sum of $1,140.00.
“That on July 1, 1963, claimant was entitled to a refund of said sum (Ill. Rev. Stats., Chap. 95%, Sec. 7-503), and was so notified by the office of the Secretary of State of the State of Illinois.
“That, as a result of the failure of claimant to file claim for refund, the funds were transferred to the General Revenue Fund on August 30, 1963.”

Sec. 7-503 of Chap. 95%, 1965 Ill. Rev. Stats., provides that any person having a legal claim against such deposit may enforce it by appropriate proceedings in the Court of Claims subject to the limitations prescribed for such Court. It is the opinion of this Court that claimant has complied with the statute, and is justly entitled to a refund.

An award is accordingly made by this Court to claimant, Alice Uher, in the sum of $1,140.00.


text:
    (No. 5353
    Toledo, Peoria and Western Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    John E. Cassidy, Sr., Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant seeks to recover the sum of $180.00 as rent for certain premises occupied by the Department of Public Works and Buildings, Division of Highways, of the State of Illinois.

A Departmental Report has been filed admitting that claimant is entitled to the sum of $180.00 as rent for certain premises for the years ending June 30, 1962, June 30, 1963, June 30, 1964 and June 30, 1965. The Departmental Report states that the invoices were received by the Division of Highways, but that said invoices were not paid; that the fund appropriated for such payments had lapsed, and that there were unobligated balances in said funds sufficient to pay for the rental of said premises owned by claimant.

Subsequently a stipulation was entered into by and between claimant and respondent admitting that claimant is entitled to the amount of $180.00, and that said amount is owed by the respondent herein.

This Court has held that, when the appropriation for the biennium from which a claim should have been paid has lapsed, it will enter an order for the amount due claimant.

Claimant is hereby awarded the sum of $180.00.


text:
    (No. 5354
    Evelyn M. Grablowski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1967.

    Philip S. Aimen, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Evelyn M. Grablowski, has filed her complaint herein seeking to recover from William J. Scott, Treasurer of the State of Illinois, the sum of $1,260.00, constituting a security deposit as evidence of financial responsibility, which was made by Charles J. Grablowski on August 17, 1961 in accordance with Sec. 42-12 of the Motor Vehicle Law of the State of Illinois. Charles J. Grablowski died on May 30, 1963. Claimant is the sole and only heir, devisee, and legatee of the Estate of Charles J. Grablowski, deceased, and, as well, is the Executor of the Will of said decedent. On November 9, 1965, claimant sought to recover the security deposit from Paul Powell, Secretary of State, but was advised that said moneys had been paid over into the General Revenue Fund of the State Treasury on September 7, 1965, and that said £>tate agency was unable to refund the security deposit because of the transfer.

A stipulation of facts was made and entered into by and between claimant and respondent, and filed with the Court of Claims on the 28th day of November, 1966. From the stipulation of facts by the parties, it appears:

“That one, Charles J. Grablowski, deceased, husband of claimant herein, had deposited with the office of the Secretary of State of the State of Illinois, in accordance with Chap. 95%, Sec. 7-204, Ill. Rev. Stats. (1965), as amended, the sum of $1,260.00.
“That Charles J. Grablowski died on May 30, 1963, and that claimant herein is the sole heir and legatee of the Estate of Charles J. Grablowski, deceased, as indicated by Court Order, issued in the Probate Court of Cook County, in Case No. 63P7520, Docket 657, page 622.
“That on December 22, 1965, claimant was entitled to a refund of the sum of $1,260.00 (Ill. Rev. Stats., Chap. 95%, Sec. 7-503), and was so notified by the office of the Secretary of State of the State of Illinois.
“That, as a result of the failure of claimant to file claim for refund, the funds were transferred to the General Revenue Fund on September 7, 1965.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof has occurred.
“That upon the foregoing agreed case filed herein, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

Sec. 7-503 of Chap. 95%, Ill. Rev. Stats., provides that any person having a legal claim against a security deposit may enforce the same by appropriate proceedings in the Court of Claims of the State of Illinois. This Court is of the opinion that claimant has complied with the statute, and is justly entitled to a refund.

Claimant is awarded the sum of $1,260.00.


text:
    (No. 4857
    Lowell M. Webb, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 17, 1967.

    Krusemark and Bertani, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Dr. Lowell M. Webb, a veterinarian, seeks to recover $4,500.00 allegedly due him from the State of Illinois as contributions toward his salary as Will County Veterinarian. He is seeking fifteen monthly payments of $300.00 each for the period of October, 1956 through December, 1957.

Will County, acting through its Board of Supervisors, had adopted the “County Area Plan” for the suppression, eradication and control of bovine tuberculosis and Bang’s disease within Will County pursuant to the provisions of Chap. 8 of the 1955 111. Rev. Stats.

The Will County Board of Supervisors had employed Dr. Webb by written contract annually since 1947 as County Veterinarian, and annually since 1948 had petitioned the Department of Agriculture of the State of Illinois for payment of 50% of Dr. Webb’s salary, as provided for in Sec. 187a of Chap. 8 of the 1955 Ill. Rev. Stats.

On September 11,1956, at a regularly convened meeting of the County Board of Supervisors of Will County, Illinois, the County Board duly passed a resolution to adopt the “County Area Plan”, and to employ a County Veterinarian beginning October 1, 1956 and ending September 30, 1957 at a salary for the year of $7,680.00. On the same date the Board entered into a written contract with Dr. Webb, hiring him for the year in question.

On September 10,1957, at a regularly convened meeting of the Board of Supervisors of Will County, Illinois, the County Board duly passed a similar resolution to employ a County Veterinarian for the period beginning October 1, 1957 and ending September 30, 1958 at a salary of $7,680.00. On the same date the Board entered into a written contract with Dr. Webb, hiring him for the year in question.

During the period of October, 1956 through December, 1957, the United States Department of Agriculture conducted an investigation of claimant for suspected irregularities in the Co-operative Animal Disease Eradication Programs in Will County, Illinois, and, because of said investigation, the Department of Agriculture of the State of Illinois, which was advised thereof by the Secretary of Agriculture of the United States, informed claimant that he was to perform no official activity until the investigation had been completed. Claimant was advised by letter, dated January 8, 1957, by the United States Department of Agriculture that his accreditation with them was cancelled.

For the period of October, 1956 through December, 1957, the County of Will paid Dr. Webb their share of his. salary, and during this period of time the State of Illinois refused to make any payment of their share of his salary. Claimant alleges that, during the period of October, 1956 through December, 1957, he performed all of his duties as County Veterinarian other than issuing health certificates for animals intended for interstate or export shipment, or the personal testing or vaccination of animals as to tuberculosis and brucellosis, these particular functions being denied him because of the suspension of his accreditation by the United States Department of Agriculture.

In this cause, claimant is attempting to recover damages from the State of Illinois for breach of a contract between the County of Will and the State of Illinois. As a general rule, only a party or a privy to a contract may enforce it, or be held responsible for any alleged breach. Claimant has no contract with the State of Illinois. Claimant under his contract with the County of Will was to receive $340.00 from the County of Will, and the balance of his salary, amounting to the sum of $300. 00, was to be paid from sums allocated by the State of Illinois to said County.

The State of Illinois was never required to make any salary payments directly to claimant. All sums were allocated by respondent solely to the County of Will.

Chap. 8, Sec. 187a of the 1955 Ill. Rev. Stats., provides that:

“The Department (of Agriculture of the State of Illinois) shall, upon the petition of the County Board or County Boards, make payment of 50% of the salary of the County Veterinarian and his assistants. . .

This section clearly indicates that only the County can petition the Department of Agriculture for its share of the County Veterinarian’s salary, and there is nothing in this section granting the County Veterinarian the right to personally petition the Department. Claimant’s total salary was actually paid by the County of Will, and the fact that the State made payments to the County pursuant to a statute should not be construed as making respondent a party to any employment contract between claimant and the County of Will.

Chap. 8, Sec. 187a of the 1955 Ill. Rev. Stats., provides that:

“Any County or Counties adopting the County Area Plan may employ a County Veterinarian and assistants for the supervision of contagious diseases of livestock within the County, and the suppression, eradication and control of bovine tuberculosis and Bang’s disease. The Veterinarian shall be approved by the Department, and shall work under the direction of and in conjunction with the Department. . . .”

On September 28, 1956, the State of Illinois Department of Agriculture informed claimant that an investigation was being conducted by the United States Department of Agriculture in which claimant was suspected of certain irregularities in the conduct of the CoOperative Animal Disease Eradication Programs in Will County; and that, as a result of this investigation, the State Department of Agriculture found it necessary to restrict claimant from performing any official activity in connection with the Co-Operative Animal Disease Eradication Programs in Illinois until the investigation was completed. This restriction was to be effective as of the close of business on September 30, 1956.

This Court construes the letter of the State Department, dated September 28, 1956, as a refusal on the part of the Illinois Department of Agriculture to approve the appointment of claimant as County Veterinarian. Approval of claimant as County Veterinarian by the Illinois Department of Agriculture was a condition precedent to the Department’s obligation to reimburse the County of Will for 50% of the salary of the County Veterinarian.

Claimant alleges in his complaint that during the period in question, October, 1956 through December, 1957, he had duly performed his official duties in Will County, Illinois, as County Veterinarian, with the knowledge and approval of the Department of Agriculture of the State of Illinois, and under the direction of said Department, and in conjunction with the rules and regulations of said Department.

One of Dr. Webb’s official duties, which by the letter of September 28,1956 he was specifically barred from performing, was to submit certain monthly reports concerning the herds and the number of head of cattle subjected to the tuberculin tests and the Bang’s disease control program. Claimant filed with the Court copies of the required monthly reports which had allegedly been sent by claimant to the Illinois Department of Agriculture. However, the report of the Illinois Department of Agriculture states categorically that Dr. Webb submitted no reports to the division of the work which he performed during the period of October, 1956 to December, 1957. There were approximately thirty-three pages of official departmental records filed with the Court supporting the Department of Agriculture on this question. In view of the evidence submitted, the Court finds that claimant has failed to prove by a preponderance of the evidence a filing of the required monthly reports.

It is the opinion of this Court that claimant has failed to establish a cause of action against the State of Illinois. There is a complete failure of privity of contract between claimant and the State. This Court further finds that the State of Illinois, because of its refusal to approve the appointment of claimant as County Veterinarian for Will County, Illinois, was not obligated under the statute to reimburse the County of Will for any portion of claimant’s salary from the County of Will for the performance of any duties as County Veterinarian.

The claim is hereby denied.


text:
    (No. 5074
    Wayne E. Justice, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 17, 1967.

    Stifler and Snyder, and Atchison and Koeneman, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $25,000.00 as damages for injuries sustained by him on the 21st day of November, 1960, while an inmate at the Menard Branch, Illinois State Penitentiary, alleging various acts of negligence of respondent.

Paragraph 8 of said complaint is as follows:

“8. That at the time and place aforesaid respondent, the State of Illinois, by and through its agents in that behalf, committed one or more of the following acts or omissions:
a. Provided a machine for the cutting of tobacco, which machine was unsafe;
h. Required claimant to work on an unsafe machine;
c. Added to the tobacco cutting machine a certain foot operating mechanism, which mechanism was unsafe and dangerous;
d. Provided a tobacco machine, which was an inherently dangerous instrumentality;
e. Established working conditions for the tobacco cutting machine and the tobacco shop at the Menard Penitentiary, which conditions were unsafe;
f. Did not give proper instructions as to the proper operation of the tobacco cutting machine;
g. Did not properly supervise the working conditions at the tobacco shop at the Menard Penitentiary;
h. Did not prbvide proper safety switches for said tobacco cutting machine;
i. Provided a machine, which was defective.”

On the 21st day of November, 1960, claimant, Wayne E. Justice, was serving a sentence imposed upon him by the Circuit Court of Vermilion County, Illinois. He was an inmate of the Menard Branch of the Illinois State Penitentiary, and was assigned to work in the tobacco shop at Menard. On the date of the accident claimant was working as a mechanic in that shop, and had worked there for approximately three and one-half years. His regular duties were to repair the machinery used in the tobacco shop, and he worked at these duties five days per week.

On the above date, at approximately 8:00 in the morning, he arrived at the tobacco shop, put on his work clothes, and proceeded to work on a machine known as a “lumper”. This particular machine is used to mold loose tobacco leaves into a plug. The molding is accomplished by means of hydraulic pressure, and in operation the machine exerts about 8,000 pounds of pressure in order to mold the tobacco. Attached to the ram of the machine is a “shaper”, which is a rectangular piece of steel about four by ten inches. It is turned np on the edges, and fits into the mold at the bottom of the machine. The shaper is connected to the ram by bolts. This machine was used to pound or ram tobacco leaf into the shape of a plug. It had two hand levers with black knobs at the front, and was normally operated with one hand on each of these black knobs. The method of operating the machine was changed prior to the injuries sustained by claimant. In order to free one of the operator’s hands so that production could be increased, the hand lever on the right side was chunked or blocked off, thus allowing the machine to be operated by the use of the left hand only. At a later date another innovation to further speed up the operation of the machine was introduced, which consisted of a wire running from the left hand lever attached to the black knob to a foot pedal on the floor, so that, when 'the operator pressed his foot on the pedal, the lever with the black knob was pulled down operating the plunger or ram. This was the method of operation on the day of the accident.

On the morning of the accident in question claimant had removed the shaper from the lumper, had cleaned loose tobacco from the same, and was returning it to the machine. Claimant testified that there was no one else around, and that, when he removed the shaper, the foot pedal and wire were not hooked up to the left hand lever. There is testimony that the foot pedal was disconnected each evening after the tobacco shop closed down. Claimant further stated that, when he returned from washing the metal piece or “shaper”, he did not notice whether the foot pedal had been connected. He testified that, when he returned, the machine operator had not yet come into the shop, nor was anyone else near the operating mechanism of the machine. He said he placed the shaper against the ram with his left hand, and started to tighten the set screws with his right hand. As he was tightening these screws, the machine operated and crushed his left hand. Claimant was hospitalized in the prison hospital, and was attended by the prison physician. On the day of the accident the doctor amputated the ring finger at the middle joint, and removed the bone from the tip of the little finger. The index and middle fingers were sutured and wired in an attempt to repair them, but four days later the doctor had claimant taken to the operating room, and at that time the middle and ring fingers were amputated. This amputation was of the 1 ‘Guillotine type”', and the fingers were cut off right next to the hand, or in the proximal phalanx. Some two months later it was necessary to surgically repair one of the stumps, and this revision was performed by the prison physician.

Claimant alleges that respondent was negligent, and in paragraph 8 of his complaint sets forth the purported acts of negligence. All involve the nature of the machine being operated, as well as the working conditions permitted while a potentially dangerous machine was in operation. The machine was purchased by the State from the manufacturer, and the tobacco shop supervisor, Mr. Henson, was on the job in the tobacco shop at the time the machine was installed. When it was received in the tobacco shop at the Menard Branch, it was fitted with two levers, which extended from the front of the machine, and were used to operate the machine, necessarily occupying both the left and the right hands. The operator stood in front of the machine, and dumped loose tobacco into the mold. After this, he would shut a gate on the front of the mold, and then by pressing both of the levers the ram with the shaper on the end of it would come down, and mold the tobacco into a plug. The testimony reveals that in order to speed up production the tobacco shop instituted two innovations upon the machine prior to the time that claimant was injured. One, the right hand lever was blocked into operating position by the insertion of a chunk of wood or by wiring it down, so that the machine could be operated with one hand, the left. Later, a foot pedal was rigged to connect to the left lever, so that that lever could be activated by the left foot leaving the left hand free, as well as the right. Superintendent Henson, industrial foreman of the tobacco shop, testified that he told the inmates not to use the board.

“Q. Did you ever tell anyone not to use this foot lever ?
A. Yes, I told them not to, but I just didn’t stick hard enough, I guess.
Q. Is it still being used?
A. It is still being used, yes.”

The negligence of respondent is sustained by the testimony of the Superintendent of the tobacco shop who readily admits that the purpose of having two hand levers at the front of the machine with the black knobs was to prevent an accident of the nature that occurred to claimant. It is the opinion of the Court that claimant has established adequate negligence on the part of respondent under the issues raised by the allegations, which were set forth in paragraph 8 of the complaint. In Morris vs. State of Illinois, 23 C.C.R 91, this Court stated as follows:

“However, if it appears from the evidence that claimant was assigned to work under unsafe conditions, was not guilty of contributory negligence, and was injured, respondent would be guilty of negligence.”

Claimant testified that he had worked on the machine before and had taken the shaper off of the ram on other occasions. He stated that he was a mechanic, and knew how the machine operated. On the morning in question, he turned the power on to the machine by flipping a- switch on the east wall. He testified that he had the shaper on the ram with his left hand holding it up to the ram with two set screws snugged up, and that he reached around with the right hand, and pushed the button that would start the machine. He also testified that he didn’t know whether the foot lever was hooked up to the lever on the left side, but did know it wasn’t hooked up when he first arrived at the tobacco shop. Testimony further reveals that the gate on the mold was off of the machine at the time of the accident; that the gate was there for safety protection; and, that it would not be possible to get a hand into the mold when the gate was closed. Hoyt Brewer, a fellow inmate, who had known claimant for some time, and who had worked in the tobacco shop for several years, testified that, when he heard claimant holler, he tried to get his foot off the pedal, and noticed that there was a wire between the hand operating lever and the foot lever, which was connected. Claimant was thoroughly familiar with the operation of the machine even in its changed condition, and the testimony of Hoyt Brewer clearly established that the ram was set in operation by claimant.

This Court finds that claimant has clearly established negligence of respondent, but has failed to prove that he himself was free from contributory negligence. The claim is denied.


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    (No. 5174
    Dana Jodlowski, Administrator of the Estate of Stanley Jodlowski, Deceased; and Dana Jodlowski, Administrator of the Estate of Frank Jodlowski, Jr., Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 17, 1967.

    Joseph L. Baime, and Kane and Kane, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

This is an action for wrongful death brought ¡by claimant, Dana Jodlowski, as Administrator of the Estates of Stanley Jodlowski, deceased, and Frank Jodlowski, Jr., deceased, against respondent, State of Illinois, to recover damages for the deaths by drowning of the said Stanley Jodlowski and Frank Jodlowski, Jr., while they were visitors at Wolf ¡Lake State Park.

The Court finds the facts to be as follows:

Wolf Lake State Park is located on the far southeast side of' Chicago. It is approximately one and one-half miles long from north to south, and about one-half to one mile wide from east to west. Within the boundaries of this park is a body of water called Wolf Lake. Beginning in the late 1950’s and continuing until about 1962, extensive dredging work was performed in Wolf Lake for the purpose of acquiring sand from the lake bottom to be used in the construction of the Calumet Skyway Expressway. This dredging to a depth of twenty-five to thirty-five feet occurred in various parts of the lake, and included some areas near the shoreline. After the dredging had been completed, and the lake filled with water to its normal level, the deep drop-offs or depressions caused by the dredging could no longer be seen. The present custodian of the park, who has held that position since 1960, personally observed the dredging work while in process, and knew of the unusual condition of the lake bottom.

Michael Lalich, a police officer of the City of Chicago, was called as a witness for claimant. He testified concerning the dredging of Wolf Lake approximately seven years ago, and stated that some of the dredging was to a depth of 20 to 25 feet. He also stated that the sand was removed from Wolf Lake to be used for the approaches of the Calumet Skyway being constructed at that time. He said that, “prior to the dredging, this lake was one body of water. It was nothing but a mud hole actually, a mile long and a mile wide, but you could practically walk across the whole lake. Now it is three lakes actually.” He further testified that at the time of the drownings there were three signs erected at the lake. One was at the north end of the lake, which stated “Deep Water”, and two were located at the south end of the lake, which stated “No Swimming”. He further said that there were no signs at or near the sand bar in question where the boys drowned. He testified that he patrolled the area approximately three times a day while on duty.

On Sunday, August 4, 1963, a party of five drove out to Wolf Lake State Park to do some fishing. This group consisted of Stanley Jodlowski, age 18; his brother, Frank Jodlowski, Jr., age 12; Mrs. Dana Jodlowski, their mother ; and two friends, Raymond Borowicz, age 17; and Robert W. Graeber, age 17. The party of five arrived at the park at approximately 8:00 A.M. This was the first time any of the five had ever been to Wolf Lake State Park. Upon their arrival at the lake, the four boys took out their fishing tackle, and began to fish in the lake. At approximately 10:00 A.M., the weather being warm, the boys decided to cool off by wading in the lake by the shore. They removed their shoes and socks, rolled up their pants legs, stepped into the lake, and walked the short distance to the sand bar previously mentioned. The water between the shore and the sand bar was shallow, no deeper than knee high. The boys stayed on the sand bar for a short while, and then walked off of it a few steps to the east. When Frank Jodlowski, Jr., was approximately 10 or 12 feet east of the sand bar, he was suddenly in water over his head and going down. His brother, Stanley Jodlowski, went to his assistance, and was himself dragged down. The other two boys joined hands, and tried to reach out for the Jodlowski brothers, but were not successful. Stanley Jodlowski and Frank Jodlowski, Jr., went down together, and did not come up again. A scuba diver, Jack M. Downey, happened upon the scene, and immediately donned his scuba gear, and dove into the lake at a point east of the middle of the sand bar. Downey testified at the hearing in this cause that he found the two brothers at the bottom of a drop-off or depression in the lake bottom approximately 20 feet down with one brother lying on top of the other. Downey further stated that the drop-off or precipice went down at an angle of 75 to 80 degrees, and started about 5 feet or so east of the sand bar, and that the precipice was slippery and muddy.

The park custodian, Alfred E. Osborne, testified that during the warm months of the year large numbers of visitors to the park waded and swam in Wolf Lake. He also stated that, during the warm months when visitors to the park were wading and swimming in the lake, there was no supervision by lifeguards, nor were there any life preservers in the park area, or any loud speaker system or other device used to warn visitors of the deep drop-offs and depressions in the lake bottom. He said there were no barriers constructed at any place along the shore of the lake to keep visitors from entering the water, and no markers, ropes or buoys to indicate or warn of the deep drop-offs or depressions.

Custodian Osborne further testified that the only effort made to keep people from swimming and wading in the lake was the erection of certain signs posted at a few places in the park, which bore the legend “No Swimming”. The “No Swimming” signs, which were erected, were made and put up by the custodian or one of his helpers. These signs were frequently torn down, and had to be replaced from time to time. At no time was a professional sign making company engaged to erect the type of signs, which would have been permanent in nature, and which could have withstood the abuse of vandals.

He stated that on summer weekends, when the park was crowded with several thousand visitors of all ages, the only personnel employed by respondent to operate and maintain the park, and to keep it reasonably safe and warn visitors of danger was the park custodian and his two young helpers. Their chief duties consisted of keeping the park clean, cutting the grass, emptying the garbage, and cleaning the toilets. The park custodian further testified that most of the visitors to the park who swam or waded in the lake seemed to congregate in the southwest portion of Wolf Lake around a sand bar close to the shore. There is no evidence in the record that park personnel were ever stationed in this area on Sundays and holidays, or at any other time, to warn people of the dangerous condition of the lake bottom, or to otherwise provide for the safety and protection of park visitors.

The surviving members of the group testified that, from the time they entered the park up to and including the time of the drownings, there were no visible signs of any kind to warn of the dangerous condition of the lake bottom, or to caution visitors about entering the water. This testimony was corroborated by Police Officer Michael Lalich and by Jack M. Downey, both of whom testified that there were no signs posted on Sunday, August 4, 1963, in the area of the drownings. Mrs. Dana A. Jodlowski, Administrator of the decedents’ estates and the mother of the decedents, testified that Prank Jodlowski, Jr., age 12, was a 7th grade grammar school student, and could swim slightly. She further stated that Stanley Jodlowski, age 18, was a graduate of St. Leo High School, was employed at the time of his death by the International Harvester Company of Chicago, and was earning approximately $85.00 per week. She stated that he was going to attend college the following fall, and was a good swimmer.

This Court is of the opinion that Mrs. Dana Jodlowsld, her two sons, Stanley Jodlowski and Frank Jodlowski, Jr., and their two friends, Raymond Borowicz and Robert W. Graeber, were invitees of respondent to Wolf Lake State Park. As invitees, the State had the duty to exercise ordinary care to protect them from harm. It has been held by this Court that the State owes a duty to the public to exercise reasonable care in establishing, maintaining and supervising its parks. Kamin vs. State of Illinois, 21 C.C.R. 467; Steelman vs. State of Illinois, 22 C.C.R. 446. In a later decision this Court went even further when it held that the State had a duty to warn of a danger, which existed along a trail in the White Pines State Park, where the State knew that such trail was used by the public, and where those using the trail would have no knowledge of the existing danger. Hansen vs. State of Illinois, 24 C.C.R. 102. In allowing the claim of claimant in the Hansen case for injuries sustained when he fell into a deep gorge near the trail in question, the Court stated that respondent was negligent in failing to provide notice or warning of the proximity of the dangerous gorge to the portion of the trail in question.

It is the opinion of this Court that respondent was negligent in failing to warn the Jodlowski party and other visitors to Wolf Lake State Park of the dangerous and unusual condition of the lake bottom caused by the dredging. The evidence in the case indicates that respondent had actual or constructive notice of the unusual condition of the lake bottom. Respondent also had actual or constructive notice of the large number of people who came to the park in the warm months of the year, and of their use of the park lake for wading or swimming. Testimony indicates that, from the time the Jodlowski group entered the park until the occurrence of the drownings, there were no warnings, signs, or other indications given by respondent of the danger of wading or swimming in Wolf Lake. Respondent failed to adopt and provide the requisite safety measures and procedures to warn visitors to the park of the dangerous condition of the lake bottom, and to protect them from it. The drownings of the Jodlowski brothers were the direct and proximate result of this failure. Stanley Jodlowski drowned while attempting to rescue his brother, Frank Jodlowski, Jr. The proximate cause of the injury to one who voluntarily interposes to save the life of a person imperiled by the negligence of others is the negligence, which caused the peril.

There is no testimony in the record to indicate that the Jodlowski brothers or any of the members of the Jodlowski party were guilty of contributory negligence. None of the members of the party had ever been to Wolf Lake State Park prior to August 4, 1963. They came to the park for the purpose of fishing and picnicking. There were no signs in the area of the drownings warning visitors to the park of the dangerous condition of the lake bottom. The evidence indicated that the boys went into the lake not to swim, but merely to wade in water, below their knees for the purpose of cooling off. The conduct of the Jodlowski brothers, as well as their two companions, in wading in Wolf Lake was not unreasonable under the circumstances and surroundings. The testimony of the park custodian indicated that the conduct of the boys would appear to be consistent with the conduct of hundreds of visitors to Wolf Lake who during the warm months of the year entered the lake to wade, swim and sun-bathe on the sand bar.

The Wrongful Death Act provides that any amount recovered in any action brought pursuant to the same shall be for the exclusive benefit of the widow and next of kin of such deceased person. The pleadings in the case at bar indicate that the Jodlowski brothers left them surviving as their only next of kin, Frank Jodlowski, their father; Dana A. Jodlowski, their mother; and Christine Jodlowski, their sister. The law is well established in Illinois that, where a person meets his death because of the wrongful act of another, and leaves surviving him lineal heirs, there is a presumption of pecuniary loss as to the said next of kin, and this presumption is sufficient to sustain an award of substantial damages, even without proof of actual loss. Citations Howlett vs. Doglio, 402 Ill. 311; 83 N.E. 2d 708 (1949); Ferraro vs. Augustine, 45 Ill. App. 2d 295; 196 N.E. 2d 16 (1964).

Claimant, Dana Jodlowski, as Administrator of the Estate of Stanley Jodlowski, deceased, is awarded the sum of $10,000.00. Claimant, Dana Jodlowski, as Administrator of the Estate of Frank Jodlowski, Jr., deceased, is awarded the sum of $5,000.00.


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    (No. 5319
    American Oil Company, A Maryland Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 17, 1967.

    C. E. Accola, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, American Oil Company, a Maryland Corporation, filed its complaint in the Court of Claims in which it seeks payment of the sum of $3,616.60 for materials furnished to the Department of Public Works and Buildings of the State of Illinois.

A written stipulation was entered into by claimant and respondent, which states as follows:

“That claimant, at the special instance and request of the Department of Public Works of the State of Illinois, had supplied gasoline, oils, greases, tires, tubes and services during the years of 1963, 1964, and 1965, in accordance with the invoices attached to the complaint, with the exception of the following items noted in the Report of the Division of Highways, heretofore filed with the Court of Claims in this matter:
Invoice No. 091609 in the amount of $48.09 has been paid, and copies of both sides of the warrant showing the endorsement of claimant are attached to the original Departmental Report creating a credit on amount claimed of $48.09.
Invoice No. 855 in the amount of $15.74 is a charge to the Division of Waterways, about which this Division has no information, creating a credit on amount claimed of $15.74.
A form numbered 3190 received as a claim of non-payment has recently been explained by claimant as a credit memorandum applicable to Invoice No. 24827 reducing the amount of the billing from $64.07 to $49.41, creating a credit on amount claimed of $14.66.
A delivery ticket in the amount of $52.71 was later reduced by Invoice No. 2037 to $42.91, creating a credit on amount claimed of $9.80.
Invoice No. T-1434 was billed at $54.00 plus a $12.00 drum deposit. The Division of Highways does not pay drum deposits, therefore, creating a credit on amount claimed of $12.00. That the total credit thus set forth is $100.29.
“That there is rightfully due claimant the sum of $3,516.31.
“That the bills were not presented, scheduled and processed until after September 30, 1965, when the 73rd biennium appropriations had lapsed.
“That no assignment or transfer of the claim has been made.
“That upon the foregoing agreed case filed herein, the Court shall decide thereon, or enter judgment therein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, an Illinois Corporation, vs. State of Illinois, Case No. 5261, opinion filed February 24, 1966. It appears that all qualifications for an award have been met in the instant case.

Claimant, American Oil Company, is, therefore, hereby awarded the sum of $3,516.31.


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    (No. 5380
    The Lawyers Co-operative Publishing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 17, 1967.

    Robert H. Brunsman, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $1,170.00 for certain law books ordered from claimant by the Honorable Samuel 0. Smith, Judge of the Appellate Court of Illinois, Fourth District. On the 20th day of January, 1967, a stipulation was filed herein by and between claimant and respondent, which is as follows:

“The report of Honorable Robert L. Conn, Clerk of the Appellate Court, and of Honorable Samuel O. Smith, Judge of the Appellate Court, attached hereto, and by this reference, incorporated herein and made a part hereof, shall be admitted into evidence in this proceeding without objection by either party.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned, and the Court may make and file their reports, recommendations, orders, and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $1,170.00.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

From such record it appears that the appropriations for the 73rd biennium had lapsed when this statement for $1,170.00 was finally presented to the Clerk of the Fourth District, Illinois Appellate Court, for payment.

This Court has consistently held that, when the appropriation for the biennium from which a claim should have been paid has lapsed, it will enter an order for the amount due claimant.

Claimant is hereby awarded the sum of $1,170.00.


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    (No. 5111
    Constance Kumiga, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 17, 1966.

      Petition of Claimant for Rehearing denied March 20, 1967.

    Lewis L. Vishny and Benjamin J. Schultz, Attorneys for Claimant.
    William G. Clark, Attorney General; Kevin J. Gillogly, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Constance Kumiga, seeks to recover from respondent, State of Illinois, damages for personal injuries, which she sustained on February 6, 1962, when she fell outside the Illinois Secretary of State’s Motor Vehicle Facility, which is located at 5401 Elston Avenue, Chicago, Illinois.

Claimant charges that her fall and resulting injuries were caused by the negligent and careless maintenance of the area way, entrances and approaches to said Facility. She alleges that respondent negligently permitted the accumulation of large amounts of snow, ice and other debris in said area way, entrances and approaches, and permitted the same to remain in such a condition for a long period of time. Claimant further alleges that, as a result of said negligence, she was caused to slip and fall in the entrance way to said premises breaking her right leg, causing bruises and internal injuries, severe pain and suffering, and permanent injuries to her body.

The facts, as alleged by claimant, and upon which she bases her claim for damages, are as follows:

On February 6, 1962, claimant went to the Illinois Secretary of State’s Motor Vehicle Facility, which was located at 5401 Elston Avenue, Chicago, Illinois, to purchase a set of license plates for her automobile. She parked her car in the parking lot at the rear of the Facility, and walked across the parking lot to a sidewalk adjacent to the rear of the building. Claimant proceeded along this sidewalk in a southeasterly direction toward the rear entrance of the building. In order for claimant to reach the entrance of said Facility, it was necessary for her to traverse the entire distance of that walk, step down from said sidewalk to a loading zone crosswalk, cross the loading zone crosswalk, and step up to another sidewalk leading directly to the entrance of the Facility. Claimant alleges that, when she reached the end of the first sidewalk and stepped down to the loading zone crosswalk, she slipped on accumulated snow and ice and fell sustaining an injury to her right leg. Claimant alleges that the sidewalk and crosswalk upon which she was walking and subsequently fell was covered with ice, and that she walked very carefully as though “walking on eggs.”

The facts, as alleged by claimant, are disputed by respondent. Adolph S. Bier, an Investigator for the Office of the Secretary of State, was called as a witness on behalf of respondent. He stated that he was looking out of a window of the Secretary of State’s Office at 5401 Elston Avenue, approximately ten feet from where claimant fell, and that he saw claimant walking along the sidewalk at the rear of the building. He testified that he saw her step off of the curb, out of the crosswalk, and into an area known as a loading zone, and fall on a piece of ice, which was to the right side of the crosswalk and out of the crosswalk area. Mr. Bier further testified that the sidewalk and crosswalk across the loading zone were dry. He stated that the piece of ice in question was not in the location of the crosswalk across the loading zone, but rather was to the right of that area in the loading zone.

Theodore N. Pladis, an Investigator for the Secretary of State’s Office, was also called as a witness by respondent. He testified that, when he was called to the scene of the accident by Investigator Bier, claimant was lying in the loading zone adjacent to the sidewalk at the rear of the Facility. He stated that there was no snow or ice on the sidewalk or crosswalk across the loading zone. He further testified that claimant told him that, upon stepping off the sidewalk into the loading zone, she slipped and fell on a piece of ice.

Alfred E. Schiller, a Lieutenant in the Investigation Department, North Facility, Secretary of State’s Office, stated that, when he arrived at the scene, he observed claimant lying in the loading zone alongside the curb. He further testified that the walk and crosswalk were clear of ice and snow.

Our inquiry is first directed to the legal status of Constance Kumiga at the time and place of the accident. The Office of the Secretary of State, by means of advertising, mailings and notices, invited the public to come to its various facilities, such as the one in question, for the purpose of purchasing license plates for automobiles. Claimant was clearly an invitee, and was, therefore, entitled to reasonable or ordinary care on the part of respondent to maintain its premises in a reasonably safe condition. This degree of care, however, does not impose a liability of an insurer as against any actions that may occur; it only requires that the owners of the premises use reasonable care. Murray vs. Bedell Company, 256 Ill. App. 247; Rudolph Dreikurs and Sadie Dreikurs, vs. State of Illinois, 23 C.C.R. 85.

It is fundamental that the burden of proof is upon claimant to establish negligence on the part of respondent, as well as her freedom from contributory negligence, before recovery can be had. In our judgment, claimant has not borne the burden of proof. The preponderance of the evidence indicates that the sidewalk and crosswalk area were free from snow and ice, and the respondent had exercised ordinary care in maintaining the sidewalk, crosswalk and approaches to the building. It is further to be noted that there is no evidence of any of the hundreds of other persons using the facility that day slipping or falling on ice or snow, or had had any difficulty in walking upon the sidewalk and crosswalk in question.

Even if we assume for a minute that the sidewalk and crosswalk were covered with ice, as alleged by claimant, it is clear from claimant’s own testimony that that very condition was apparent to her. She should be held to have assumed whatever risks were involved in going upon the ice covered sidewalk and crosswalk. There was no hidden danger. She was completely cognizant of the condition of the sidewalk and crosswalk. In this case, claimant was as well apprised of the condition of the sidewalk and crosswalk as respondent, and should be held to as high a degree of care for her own safety as would be required of respondent. Murray vs. Bedell Company of Chicago, 256 Ill. App. 247; Carlson vs. United States, 90 F. Supp. 159.

Further, this Court held in Rudolph Dreikurs and Sadie Dreikurs vs. State of Illinois, 23 C.C.R. 85, as follows:

“It is common knowledge that the northern half of Illinois is subject to miserable and many times dangerous conditions for four or five months of the year. Sleet, ice and snow make walking or driving a genuine hazard. In spite of reasonable efforts made to remove these hazards, many people are injured through no fault of their own. All who elect to live and work in this area, usually because economic conditions are better, assume a risk that does not exist in other parts of our country.”

The claim is denied.


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    (No. 5339
    Keuffel and Esser Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 17, 1967.

    Wolfe, Klein, Bonner and Bezark, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Keuifel and Esser Company, a Corporation, filed its complaint in the Court of Claims in which it seeks payment of the sum of $2,696.16 for materials furnished to the Department of Public Works and Buildings of the State of Illinois.

A written stipulation was entered into by claimant and respondent, which states as follows:

“That the claimant is a New Jersey Corporation, qualified to do business in the State of Illinois, and that at the special instance and request of the Department of Public Works and Buildings of the State of Illinois had supplied respondent with tapes, tape refills, chains, surveying and engineering equipment, as indicated in exhibits Nos. 1 through 10, attached to the complaint filed herein.
“That the customary and usual charge for said merchandise was equivalent to the sum set forth in the invoice, namely, $2,696.16.
“That the vouchers for said merchandise were not presented or processed until after September, 1965, when the 73rd biennium appropriations had lapsed.
“That no assignment or transfer of this claim has been made.
“That there is rightfully due to claimant the sum of $2,696.16.
“That upon the foregoing agreed case filed herein, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, An Illinois Corporation vs. State of Illinois, Case No. 5261, opinion filed February 24, 1966. It appears that all qualifications for an award have been met in the instant case.

Claimant, Keuffel and Esser Company, a Corporation, is, therefore, hereby awarded the sum of $2,696.16.


text:
    (No. 5172
    J. F. Edwards Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1967.

    Robert H. White, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

This is an action brought by claimant, J. F. Edwards Construction Company, against respondent, State of Illinois, for three claims arising under a contract entered into by claimant with the Department of Public Works and Buildings, Division of Highways, of the State of Illinois for the removal of trees and stumps along certain State highways.

The amounts claimed and the basis of the claims are as follows:

1. Under the contract in question, claimant has been paid the sum of $53,794.72. The State is withholding the sum of $2,980.30 on the grounds that claimant has not completed the contract. Claimant alleges that it has substantially completed the contract, and is entitled to the sum of $2,980.30, which is being withheld by respondent.

2. Payment to claimant under said contract was to be made at the rate of $1.44 per diameter inch of the trees removed. It is claimant’s contention that the diameter of the trees removed must be measured on a plane having the same slant as the cutting plane rather than on a level plane perpendicular to the tree. On the basis of its contention that the diameter of the tree should be measured on a plane having the same slant as the cutting plane, claimant alleges an underpayment under the contract of $5,400.00.

3. Claimant alleges that additional time, additional man hours of labor, and additional use of equipment were required to backtrack to recut stumps previously approved, and to cut trees previously deleted from the list to be cut. Claimant alleges that it is entitled to a further payment of $4,339.29 for this additional work.

The letting of the contract in question was pursuant to a notice to bidders previously issued. The notice to bidders contained, among other matters, special provisions to supplement the Standard Specifications for Road and Bridge Construction, adopted January 2, 1958, and the Supplemental Specifications, effective April 2, 1962. The following are pertinent excerpts from the Standard Specifications for Road and Bridge Construction, adopted January 2, 1958, special provisions to supplement the Standard Specifications for Road and Bridge Construction, adopted January 2, 1958, and the Supplemental Specifications, effective April 2, 1962:

5.1 Authority of Engineer. All work shall be done under the supervision of the engineer and to his satisfaction. He shall decide all questions, which arise as to the quality and acceptability of materials furnished, work performed, manner of performance, rate of progress of the work, interpretation of the plans and specifications, acceptable fulfillment of the contract, compensation, and disputes and mutual rights between contractors under the specifications. He shall determine the amount and quality of work performed and materials furnished. His decision shall be final, and shall be a condition precedent to the right of the contractor to receive money due him under the contract.
10.4 Tree Removal. (As modified by special provisions — see page 2 thereof.) All trees, except those designated to be saved, and all stumps shall be cut and disposed of as provided herein. All trees shall be removed flush with the ground. The cutting plane shall be determined by the ground surface along a circumference two feet beyond the tree in every direction. Trees to be removed are painted with a yellow circle facing the pavement.
COMPENSATION
10.9 Method Measurement. (As modified by special provisions at page 2 thereof.)
(b) Tree Removal.
(1) Inch Diameter. Trees to be removed as a payment item but not measured in acres shall be measured per inch of diameter. The diameter shall be measured at a point two feet above the highest ground level at the tree, and will be determined by dividing the measured circumference of the tree by 3.1416. The accumulated total inches of diameter shall be the pay quantity. The point of measurement shall be two feet above the ground surface, as defined elsewhere herein, even though the trees are to be cut flush with the ground... .

The evidence in this case clearly indicates that Mr. Burnham, the District Construction Engineer for District 4, considers that claimant did not fully comply with the terms of the contract with respect to the cutting of the trees flush with the ground. Respondent’s evidence indicates that there were approximately eighty-five stumps, which were not cut flush with the ground, and, therefore, did not comply with the terms of the contract. Claimant has presented conflicting testimony that the eighty-five stumps in question had been previously approved as cut, and, further, that no written list of the eighty-five stumps specifically designating their location was ever given to claimant.

"While there is conflicting testimony concerning the eighty-five stumps, which respondent alleges were not cut in conformity with the terms and requirements of the contract, it is the opinion of this Court that claimant has failed to prove by a preponderance of the evidence that it has fully and completely complied with the requirements of the contract that all the trees be cut flush with the ground.

Claimant’s second claim for $5,400.00 additional compensation is based on the measurement of the diameter of the trees cut on a plane having the same slant as the cutting plane rather than on a level plane. Claimant bases its claim on its interpretation of Article 10.9(b) (1) of the Standard Specifications, as modified by special provisions. This Article provides that the point of measurement shall be two feet above the ground surface, as defined elsewhere herein, even though the trees are to be cut flush with the ground. The Specifications provide in Article 10.4 that the term “ground level” shall be defined as being “flush with the ground”. It is the opinion of this Court that there is no justification in the record for claimant’s interpretation of Section 10.9 of the Standard Specifications, as modified, that the measurement of the diameter of trees cut should be on a plane having the same slant as the cutting plane rather than measurement on a level plane. It is also to be noted that claimant accepted periodic payments under the contract based on measurement of trees cut on a level plane.

Claimant’s third claim is for compensation for additional man hours of labor and for use of equipment required to backtrack to recut stumps. It is the opinion of this Court that the alleged additional work performed by claimant for respondent was originally contemplated in the contract. It was the duty of claimant to recut the stumps in conformance with the specifications and special provisions of the contract. While the recutting of stumps may have been more work than, claimant expected, it appears that such additional work was within the terms of the contract.

We, therefore, hold that claimant is not entitled to recover for the above and foregoing reasons. The claim is denied.


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    (No. 5173
    Charles Duble, Sr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1967.

    Seymour R. Goldgehn and Arthur L. Pollman, Attorneys for Claimant.
    William G. Clark, Attorney General; Kevin J. Gillogly, Special Assistant Attorney General for Respondent.
   Pezman, J.

This is an action brought by claimant, Charles Dublé, Sr., against respondent, State of Illinois, to recover damages for personal injuries, which claimant sustained on January 30, 1963, when he slipped and fell at the Illinois State License Bureau at 9901 South Park Avenue, Chicago, Illinois.

The facts concerning the happening of the accident appear to be as follows: Claimant, Charles Dublé, Sr., on January 30, 1963 at approximately 9:30 A.M. went to the Illinois State License Bureau, which was located at 9901 South Park Avenue, Chicago, Illinois, for the purpose of purchasing license plates for his automobile. He parked his car in the north parking lot, and walked toward the east entrance of the building. Claimant entered the .building through the east entrance thereto, and proceeded to walk through a portion thereof. As he approached a checker station, where an employee of the Bureau checks license application forms, Mr. Dublé slipped and fell to the floor, as a result of stepping in some water or a wet spot that had accumulated on the floor of the premises. As a result of the fall, claimant sustained injuries to his shoulder and neck areas, headaches, vertigo, and recurrent dizziness. Claimant’s injuries required hospitalization resulting in hospital and doctor bills amounting to the sum of $816.20, apd loss of earnings totaling the sum of $1,300.00.

The exact cause of the fall is the main point of dispute in this case. It is claimant’s theory that the State of Illinois carelessly and negligently allowed water or some other slippery foreign substance to he placed on or remain on the floor, and that respondent failed to warn or in any way indicate to persons entering the building that the floors were in a dangerous condition.

Respondent’s theory of the case is that claimant slipped and fell upon the floor of the building on some water, which had formed by virtue of the melting of snow brought into said building upon the shoes of people entering the building, and that it had taken all necessary precautions to keep the premises in a safe condition. Evidence in this case clearly indicates that claimant, Charles Duble, Sr., was an invitee of the respondent when he entered the Illinois State License Bureau for the purpose of purchasing his 1963 State automobile license plates. It has been held that the test of whether one is an invitee on the premises of another is whether he is there by the owner’s invitation to transact business in which the parties are mutually interested. If so, he is an invitee. Ellguth vs. Blackstone Hotel, 340 Ill. App. 587, 92 N.E. 2d 502 (1950). With respect to an invitor’s duty to an invitee, it has been held that the owner of premises must use reasonable care and caution to keep the premises reasonably safe for the use of any invitee. Geraghty vs. Burr Oak Lanes, 5 Ill. 2d 153, 125 N.E. 2d 47 (1955). However, an invitor is not an insurer of the safety of his customers or other persons entering upon the premises by reason of his express or implied invitation. Garrett vs. National Tea Company, 2 Ill. 2d 567, 147 N.E. 2d 367 (1958). It has further been held that an invitee assumes all normal, obvious or ordinary risks attendant to the use of the premises. Lindburgh vs. State of Illinois, 22 C.C.R. 29 (1954); Dargie vs. East End Bolders Club, 346 Ill. App. 480, 105 N.E. 2d 537 (1952).

Claimant testified that the weather was clear on the date in question. However, several other witnesses testified that it was snowing at the time claimant entered the building, or that it had snowed shortly before that time, and official weather reports, which were entered in evidence, substantiate their testimony. It was also shown that there was snow on the ground, which had previously fallen prior to the day in question. It has been held in a number of cases that, where the invitor has exercised ordinary or due care in maintenance of his premises, and an invitee is nevertheless injured thereon, the invitor may not be held liable for such injury. Schnelzel vs. Kroger Grocery & Baking Co., 342 Ill. App. 501, 96 N.E. 2d 885 (1951); Clark vs. Carson, Pirie, Scott & Company, 340 Ill. App. 260; 91 N.E. 2d 452 (1950); Hartman vs. Goldblatt Bros., Inc., 19 Ill. App. 2d 563, 154 N.E. 2d 872 (1959). Liability must be founded upon fault, and, where there is no evidence of negligence on the part of respondent, liability may not be imposed.

It is the opinion of this Court that claimant has failed to show by a preponderance of the evidence that respondent, State of Illinois, was negligent in maintaining the floors in the Illinois State License Bureau at 9901 South Park Avenue, Chicago, Illinois, on January 30, 1963.

It is common knowledge that, when it is snowing, and there is snow on the ground, people entering a building will necessarily carry some moisture on their feet, which will cause the floor inside the building to become damp and possibly more slippery than a dry floor.

The danger, if any, was or should have been apparent to claimant, and claimant was or should have been aware of the condition of the floor. There is no indication in the testimony in this case that the wet or damp condition of the floor was in any way concealed from claimant. Claimant’s own testimony indicates that there was an employee of the respondent nearby with a mop and bucket at the time and place where claimant fell. Several of the witnesses indicated that they observed this employee mopping the floor of the building both before and after the accident. Claimant has failed to produce evidence that the wet or damp condition of the floor was due to any cause other than moisture brought into the building from outside on the shoes of persons entering the building prior to claimant’s entry.

It is the opinion of this Court that the wet condition of the floor, which claimant alleges caused his fall, was the result of and due to the weather conditions existing at the time, and over which respondent had no control. It is the further opinion of this Court that respondent by delegating to one of its employees the task of mopping the floor exercised every reasonable precaution to keep the floor safe. Because of the wet condition of the floor caused by the weather conditions existing at the time, the possibility that claimant might slip and fall while passing over said floor was a normal, obvious and ordinary risk at the time in question, and claimant, as an invitee, assumed all such risks when he entered the building.

Claim is denied.


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    (No. 5337
    Central Illinois Public Service Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1967.

    Nafziger and Otten, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $14,687.57 as damages caused by the rescinding of working permit No. 8-1230-62 by the District Engineer of the Division of Highways of the State of Illinois, Department of Public Works and Buildings.

A Departmental Report of the Division of Highways in relation to this cause was filed with the Court on the 21st day of February, 1967, as an attachment to a stipulation between claimant and respondent. It states as follows:

“The Division of Highways, through its District 8 office in East St. Louis, issued a permit to Central Illinois Public Service Company for the installation of an overhead electric powerline within the right-of-way of FA Route No. 155, also known as the Great River Road. Working permit No. 8-1230-62 authorized work on FA Route No. 155, Sections 401-1 and 401-2, from Station 587 + 43 to Station 758 + 38 between Grafton and Elsah in Jersey County.
“Following the issuance of the permit, the utility company entered into a contract for the construction of the overhead electric power line. Work was begun by the contractor, West Central Utilities Company, but was stopped when District Engineer R. E. Kronst rescinded the working permit on February 24, 1966.
“Land and Right of Way Supervisor Paul F. Grant of Central Illinois Public Service Company invited this Department to make an audit of the charges of $14,687.57. An audit has been made by this Department, and Division of Highways’ auditors have approved for payment to Central Illinois Public Service Company the total amount of the claim of $14,687.57.
R. B. Bowermaster Controller
By A. R. Tomlinson
Supervisor of Claims”

The stipulation of facts heretofore mentioned agrees to the admission into evidence of exhibits A, B and C, which clearly establish a good cause of action against respondent as long as the same are not refuted. Damages are fixed by the stipulation at the sum claimed, and there are no objections to the amount.

From the facts and evidence before it, this Court can do no more or no less than find that claimant was damaged in the sum of $14,687.57 as a result of the negligence of respondent in rescinding on the 24th day of February, 1966, working permit No. 8-1230-62, which said Division of Highways had previously issued on the 3rd day of November, 1965.

Claimant, Central Illinois Public Service Company, is hereby awarded the sum of $14,687.57.


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    (No. 5367
    Remington Office Systems, Division of Sperry Rand Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1967.

    Remington Office Systems, Division of Sperry Rand Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover from respondent the sum of $182.29 for materials sold to respondent in 1965 for which claimant failed to invoice respondent until November of 1966. The Departmental Report of the Division of Highways of the Department of Public Works and Buildings reads as follows:

“In April and May, 1965, the State of Illinois, through its Department of Public Works and Buildings, Division of Highways, contracted with Remington Office Systems, Division of Sperry Rand Corporation, for certain office materials to be furnished the District 10 office of the Division of Highways in Chicago.
“The materials, consisting of file folders and guides, were ordered by a Division employee with proper authority, the materials were received in good condition, and the charges therefor were reasonable.
“No part of the bill of $182.29 has been paid, and the only reason it cannot now be paid is that the appropriation therefor has lapsed.
“As of September SO, 1965, there was an unobligated balance of sufficient amount in the appropriation from which claimant’s invoice could and would have been paid.
R. E. Bowermaster Controller
By A. R. Tomlinson
Supervisor of Claims”

A stipulation of facts by and between claimant and respondent was filed herein on the 15th day of February, 1967. It clearly states that the material was received in good condition, and that neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $182.29.

It appears to the Court that this is a contract for the furnishing of materials where the contract was properly entered into, the services have been satisfactorily performed, or material properly furnished in accordance with the order, and proper charges were made therefor, but that the appropriation for payment of the same had lapsed prior to the presentment of the invoice. Our Court has repeatedly held that it would enter an award for the amount due under such circumstances.

Claimant is hereby awarded the sum of $182.29.


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    (No. 5378
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1967.

    Howard Clotfelter, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, The County of Randolph, seeks reimbursement of $15,786.50, representing expenses incurred by claimant and its officials for services performed in connection with court proceedings involving petitions for Writs of Habeas Corpus by the inmates of the Illinois State Penitentiary and the Illinois Security Hospital. These are penal and charitable institutions of the State of Illinois. Both are located within the County of Randolph.

The parties have stipulated as follows:

“That divisions of the Illinois State Penitentiary, a State penal institution of the State of Illinois, are situated in Randolph County, Illinois;
“That petitions for Writs of Habeas Corpus in forma pauperis by inmates of the Illinois State Penitentiary, not residents of or committed from Randolph County, are frequently filed in the Circuit Court of Randolph County;
“That by virtue of certain statutory provisions (Chap. 65, pars. 37, 38 and 39, 1963 Ill. Rev. Stats.) the State of Illinois is required to assume and pay the necessary expenses for such petitions for Writs of Habeas Corpus;
“That attached to the complaint as claimant’s exhibit A is a list of the petitions for Writs of Habeas Corpus in forma pauperis filed in the Circuit Court of Randolph County between the dates of March 12, 1964 and November 29, 1966, inclusive, which list is a true and correct itemization of said petitions filed between said dates; and, further, that in all cases on the said exhibit A, as amended by exhibit B, wherein amounts are itemized as Sheriff’s fees and State’s Attorney’s fees, Writs of Habeas Corpus were issued, and hearings held before the Circuit Court of Randolph County;
“That claimant, County of Randolph, claims in this action all amounts to which it is entitled in the cases listed in exhibit A, as amended by exhibit B, for filing fees, Sheriff’s fees, State’s Attorney’s fees, and law library fees; and, further, that a similar claim based upon similar items of expenses, but arising out of other cases, was presented by the County of Randolph, and determined by this Court in an opinion filed June 24, 1955, volume 22 of the Court of Claims Reports, page 205; and again in an opinion filed July 24, 1958, volume 22 of the Court of Claims Reports, page 733; and again in an opinion filed May 23, 1959, volume 23, Court of Claims Reports, page 136; and again in an opinion filed May 14, 1963;
“That none of the petitioners set forth in exhibit A attached to the complaint herein were residents of or committed from Randolph County, Illinois;
“That no claim has been presented to any State Department other than the filing of the complaint herein, and there has been no assignment of any of the items herein claimed.”

The Commissioner’s Report indicates that the hearing in this matter disclosed that a breakdown of the fees to be paid to claimant totals $15,747.50.

An award is, therefore, made to claimant, The County of Randolph, in the amount of $15,747.50.


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    (No. 5382
    Hardy Salt Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 20, 1967.

    Hardy Salt Company, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant seeks to recover the sum of $165.92 for salt furnished the Department of Mental Health, Dixon State School, 2600 N. Brinton Avenue, Dixon, Illinois.

A stipulation of facts was made and entered into by and between claimant and respondent, and was filed with the Court of Claims on the 10th day of February, 1967. The stipulation reads as follows:

“The Report of the Department of Mental Health to the Attorney General of the State of Illinois, dated January 31, 1967 (a copy of which is attached hereto, marked exhibit “A”, and, by this reference, incorporated herein, and made a part hereof) shall be admitted into evidence in this proceeding without objection by either party.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $165.92.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This Court has held that, when the appropriation for the biennium from which a claim should have been paid has lapsed, it will enter an order for the amount due claimant.

Claimant is hereby awarded the sum of $165.92.


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    (No. 4865
    Norman Magnuson, a Minor, by Orville Magnuson, his father and next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1967.

    Scheffres and Hodes, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman and Gerald S. Grobman, Assistant Attorneys General, for Respondent.
   Dove, J.

The issues that surround this claim arise out of an occurrence on August 15, 1958, at about 11:15 A.M. on a bright sunny day on Illinois Route No. 53 just north of Illinois Route No. 68. Claimant, Norman Magnuson, was nineteen years of age at the time of this occurrence, and was operating a motor scooter on said highway. There was a small bridge over a culvert at the point of the accident. The road leading to the bridge slopes upward with approximately one-half inch to two inches difference in height between the road and the bridge. As the claimant on his motor scooter approached the point where the highway adjoins the bridge, the front end of the scooter left the ground throwing claimant to the highway. Subsequently claimant was taken to Sherman Hospital in Elgin where he remained for twelve days. Claimant contends that he has suffered permanent disability as a result of this occurrence, and that he is entitled to be reimbursed for his medical expenses.

Claimant was being followed on the highway by Walter F. Schneider and Audrey Mae Schneider who observed the accident, and went immediately to his assistance. Claimant testified that he had passed over this bridge many times, had observed it, and noticed the bounce “You got out of it in a car.” Mr. and Mrs. Schneider testified that they had been over the road many times, and noticed the condition of the road, but did not feel that the bump was unusual for a car. Mr. Schneider described the rise as a “slight rise, like what frost would do to cement, would raise it.”

The law is clear that, while the State is not an insurer of persons who drive upon its highways, in cases where there is a defect, which is either known or could have been ascertained by a reasonable inspection, the State would become liable for injuries sustained as the result of said defect. However, it is the duty of claimant to establish his claim by a preponderance of the evidence. In this instance he must not only prove the defect and notice by the State, but he must also prove that he was free of any contributory negligence. According to his own testimony, claimant had been over this area of the highway on many occasions, and was well aware of the condition of the road. In the case of Dee vs. City of Peru, 343 Ill. 36, the Court stated: “It has long been the rule in this State that it is the duty of persons about to cross a dangerous place to approach it with care commensurate with the known danger, and, when one on a public highway fails to use ordinary precaution while driving over a known dangerous place, such conduct is by the general knowledge and experience of mankind condemned as negligence. ”

Claimant was aware of the condition of the roadway, and had knowledge of this defect. We are of the opinion that claimant has not shown by a preponderance of the evidence that he exercised the degree of care, which was required under the circumstances.

“It is well established that the State of Illinois does not act as an insurer in the maintenance of its highways and bridges. Respondent can be held responsible in this case only if it is established by the greater weight of the evidence that claimant, while in the exercise of due care and caution, was injured and damaged as the proximate result of a defect, which was dangerous and unsafe for ordinary travel, and that the State had actual or constructive notice of the defect, and was negligent in allowing such defect to remain uncorrected”. (Leota Anderson, vs. State of Illinois, 22 C.C.R. 413.)

This claim is denied.