text:
    (No. 5096
    Katherine Elizabeth Gasper, Surviving Widow of Robert Gasper, Deceased, Individually, and as Mother and next friend of Kip E. Gasper and Brad A. Gasper, Surviving Children of Robert Gasper, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    John E. Cassidy, Jr., Attorney for Claimants.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Katherine Elizabeth Gasper, as surviving spouse, and mother and next of kin of two minor children, brings her action in the Court of Claims pursuant to the provisions of Chap. 129, Sec. 220.53, Ill. Rev. Stats. Claimants seek to recover under that provision of statute, as the result of the death of their husband and father, Major Robert Gasper, who was killed while in the performance of his duty as a pilot for the Illinois Air National Guard.

On January 18, 1963, Robert Gasper, a Major in the Illinois Air National Guard, was killed while flying an F-84F jet fighter plane approximately twelve miles northwest of the City of Springfield, Illinois. At the time of his death Major Gasper was a Tactical Fighter Pilot and Operations Officer of the 169th Tactical Fighter Squadron, a unit of the Illinois Air National Guard, and he was engaged in a training flight from the Greater Peoria Airport over the local Springfield area pursuant to a flight order, which was signed by George H. Mason, Major, Illinois Air National Guard, Commander of the 169th Tactical Fighter Squadron. Major Gaspers plane crashed for unknown reasons at approximately 8:00 P.M. on January 18, 1963. His duty status at the time of the accident was “Inactive duty for training. Authority: Section 502, Title 32, United States Code.” Claimants are Katherine Elizabeth Gasper, widow of Robert Gasper, individually, and as mother and next friend of Kip E. Gasper, a son, born on October 5, 1953, and Brad A. Gasper, a son, born on July 30, 1955.

It is claimants contention that they are entitled to recover the maximum amount allowed for death pursuant to the provisions of Chap. 129, Sec. 220.53, as stated herein-above, and seek to recover the sum of $15,000.00 as the maximum amount, which would be allowed for death under the Illinois Workmen’s Compensation Act. Claimants cite, in support of their position, two cases previously decided by this Court, Ward vs. State of Illinois, 24 C.C.R. 229, and Lott vs. State of Illinois, 24 C.C.R. 336.

The only contention before the Court in this case is raised by the Departmental Report of the Adjutant General, which is dated April 15, 1963, and addressed to William G. Clark, Attorney General. From the Departmental Report we cite the following:

“1. At the time of his death, Major Gasper was performing duty in a federal ‘Inactive Duty Training’ status under Section 502, Title 32, U.S. Code.
“Section 101(23), Title 38, U.S. Code, defines ‘Inactive Duty Training’ as:
“a. Duty (other than full-time duty) prescribed for Reserves by the Secretary concerned.
"b. Special additional duties authorized for Reserves by an authority designated by the Secretary concerned, and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned.
“In the case of a member of the National Guard or Air National Guard, the term ‘Inactive Duty Training’ means duty under Sections 316, 502, 503, 504, or 505 of Title 32, U.S. Code.”

The same Departmental Report further states:

"5. Major Robert Gasper AO695051, was a pilot with the 169th Tac. Ftr. Sq., Ill ANG (emphasis supplied), from 16 July 61 until his death 18 Jan. 63. He was initially appointed 1st Lt. He was promoted to Captain 1 Nov. 55, and to Major 12 August 60. His duty assignment at the time of his death was Tactical Fighter Pilot and Operations Officer of aforementioned unit.”

At the hearing, the Departmental Report was objected to by claimants’ counsel insofar as the same related to the conclusions drawn by that Report in which the Adjutant General states as follows:

“Therefore, the duties being performed at time of death in this instance were pursuant to federal authority, as stated in paragraph lb above, and were not pursuant to orders from the Commander-in-Chief. For this reason, Chap. 129, Sec. 220.53, Ill. Rev. Stats. 1961, cited and quoted as basis for this complaint is incorrect. The orders authorizing the flying training mission in this instance were issued by the unit commander pursuant to the above mentioned federal authority, and were not issued from the Commander-in-Chief (Governor).”

The same Departmental Report clearly indicates that Major Robert Gasper was on Inactive Duty Training, and was a member of the 169th Tactical Fighter Squadron, Illinois Air National Guard. The decedent had previously been activated into federal service on October 1, 1961. He was discharged from such active duty on August 20, 1962. His unit was not federally activated at the time of his death.

This Court cannot accept the contention of the Adjutant General in the Departmental Report of April 15, 1963. Art. V, Sec. 14 of the Constitution of Illinois of 1870 provides as follows:

“The governor shall be commander-in-chief of the military and naval forces of the state (except when they shall be called into the service of the United States), and may call out the same to execute the laws, suppress insurrection, and repel invasion.”

Art. XII of the Illinois Constitution relates to Militia, and states at Sec. 3 as follows:

“All militia officers shall be commissioned by the governor, and may hold their commissions for such time as the general assembly may provide.”

Chap. 129, Ill. Rev. Stats., is entitled “State Militia,” and the major portion of this code was revised by the legislature in 1957. Art. I, State Militia in General, was created to establish in the executive branch of the State Government a principal department, which shall be known as the Military and Naval Department, State of Illinois. It provides that the Illinois State Militia shall be divided into two classes: the organized and the unorganized militia. Art. II of the same statute relates to the organized militia, and states at Sec. 5 thereof as follows:

“The military force of the State is hereby designated the Illinois National Guard, consisting of the Army National Guard and the Air National Guard.”

Art. III, Sec. 220.11, provides as follows:

“The governor of the State is commander-in-chief of the military and naval forces of the State.”

Chap. 129, Art. VIII, Sec. 220.37, reads as follows:

“The Commander-in-Chief shall make all appointments in the commissioned rank in the Illinois National Guard and Illinois Naval Militia. Commissions evidencing all appointments shall be signed by the Governor and attested and issued by The Adjutant General.”

Sec. 220.38 also reads:

“Commissions to officers shall read to a certain grade in a given branch of corps. Assignment to duty in any unit shall be by order of the Commander-in-Chief. The validity of all commissions shall be subject to formal acceptance and the execution of oath of office prescribed by law.”

In Lott vs. State of Illinois, 24 C.C.R. 336, almost identical facts are found except for the time, place, and the person involved. In that case, this Court stated:

“The Departmental Report of the Adjutant General confirms that, at the time of the accident, Lieutenant Lott was performing Inactive Duty Training, and was killed in the line of duty."

In that case, the Court held for claimant.

In a companion case to the Lott case, William H. Egan vs. State of Illinois, 24 C.C.R. 114, the Departmental Report is set forth in full as follows:

22 June 1959
“Honorable Grenville Beardsley Attorney General of Illinois Springfield, Illinois
Dear Sir:
The following comments are made in reply to your request of 6 June 1959 concerning the claim against the State of Illinois made by Mr. William H. Egan (Claim No. 4871).
2d. Lt. Hugh B. Lott, Jr., AO3079986, was appointed and federally recognized in the Illinois Air National Guard on 29 June 1957, with duty assignment as Pilot Tactical Fighter, 169th Tactical Fighter Squadron (Sp. Del.).
Lt. Lott was, as directed by flight order No. 72 (Attachment No. 1), piloting an F-84F Aircraft, Serial No. 526544, which crashed on the property belonging to Mr. Egan at approximately 1320 hours on 14 March 1959.
Lt. Lott at the time of the accident was performing inactive duty training, as authorized under Title 32, United States Code, Section 502. The accident occurred during the landing phase of the flight when Lt. Lott allowed the aircraft to ‘stall out’ while turning on the final approach for landing. The accident and subsequent damage to Mr. Egan’s property is attributable to ‘pilot error’ on the part of Lt. Lott in not maintaining sufficient air speed and proper altitude of the aircraft to effect a safe landing at Greater Peoria Airport, Peoria, Illinois.
Attachment No. 2 is a report of the aircraft accident investigating officer setting forth all of the facets involved in the accident.
In regard to the above, attention is invited to the opinion of your office, dated 31 July 1947, concerning claims for damage to private property by government aircraft assigned to the Illinois National Guard.
Very truly yours,
LEO M. BOYLE
Maj. Gen., AGC, 111. ARNG
The Adjutant General”

This Court held in the Egan case that Lt. Hugh B. Lott, Jr., was a member of the Illinois Air National Guard, and on the date of his death was flying a routine training mission.

It is the opinion of this Court that on the 18th day of January, 1963, at the time of his death, Major Robert Gasper was a member of the Illinois Air National Guard, flying a routine training mission, as directed in flight order No. 11 (claimant exhibit No. 2), which was signed by Major George H. Mason, also of the Illinois Air National Guard. The duty being performed by Major Robert Gasper at the time of his fatal accident was assigned to him by a commissioned officer of the Illinois Air National Guard, and by authority granted to him by the Commander-in-Chief (Governor).

We find that Major Robert Gasper on January 18, 1963 was killed while performing duty in pursuance of orders from the Commander-in-Chief, and we, therefore, award to claimants the sum of $15,000.00.


source: Caselaw Access Project

author: Dove, J.

license: Public Domain

text:
    (No. 5191
    Joseph Swee, T. M. Jablonski, Harold Mariscek, Henry Carr, Raymond Toohey, Mary Jane Winn, Harry Hecht, Raymond Delaney, Roy Drolen, John Allman, Raymond Cisco, Milton Edstrand, Joseph Peters, Lawrence Maggio, William O’Brien, William Trigg, Nora Scannel, and O. W. Wilson as Superintendent of Police, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    Joseph Swee, T. M. Jablonski, Harold Marsicek, Henry Carr, Raymond Toohey, Mary Jane Winn, Harry Hecht, Raymond Delaney, Roy Drolen, John Allman, Raymond Cisco, Milton Edstrand, Joseph Peters, Lawrence Maggio, William O’Brien, William Trigg, Nora Scanner, and O. W. Wilson as Superintendent of Police, Claimants, pro se.
    William G. Clark, Attorney General; Gerald S. Grosman, Assistant Attorney General, for Respondent.
   Dove, J.

On November 2, 1964, a petition for reimbursement for travel expenses, which were incurred by certain detectives and police officers of the City of Chicago in the performance of their official duties as messengers of the Governor of the State of Illinois in extradition proceedings, was filed in the Court of Claims. It is alleged therein that the sum of $5,186.15 is now due and owing claimants.

A written stipulation was subsequently entered into by and between O. W. Wilson as Superintendent of Police of the City of Chicago and the Attorney General for the State of Illinois. It provides in part as follows:

“That claimants are the duly appointed police officers of the Judicial District of Cook County of the State of Illinois with Police Headquarters located at 1121 South State Street, Chicago, Illinois.
"That from the period of January 1, 1962 through June 30, 1963, as set forth in the Bill of Particulars of the Amended Complaint, said claimants incurred out of pocket expenses for travel and meals in the performance of their official duties as messengers of the Governor of the State of Illinois.
“That, as set forth in the Bill of Particulars of the Amended Complaint, claimants were in the performance of official duties outside the State of Illinois pursuant to Chap. 60, Par. 41 of the 1963 Ill. Rev. Stats.
“That the appropriation available during the 72nd biennium has lapsed.
“That in each and every instance hereinabove set forth where the expenses were incurred there remained a sufficient unexpended balance in the appropriation, from which payments could have been made.
“That said claim has not been previously presented to any State Department or officer" thereof, and that said claimants are the sole owners of the claim or interest therein, and that no assignment or transfer has been made of these claims, or any part thereof, except as stated in the complaint.
“That claimants are justly entitled to the amounts therein claimed from the State of Illinois, or the appropriate State Authority, after allowing all just credits.
“That claimants believe the facts stated in their complaint are true, and that there is now due the sum of $3,780.50.
“That no other claims arising out of the same occurrences have been previously presented to any person, corporation or tribunal other than the State of Illinois."

In conjunction with the said stipulation, a joint motion of claimants and respondent was filed for leave to amend the ad damnum clause of claimants’ amended complaint. This motion was allowed in an order filed by the Chief Justice on March 19, 1965. It grants leave to claimants to amend the ad damnum clause by reducing their prayer for relief to $3,780.50.

A report of the Department of Finance, signed by James A. Honan, Director, was also filed in this matter. The last paragraph thereof states:

“Our records disclose that the messengers made the trips out of State in pursuance of proper authorizations, and their reimbursement accounts are due and payable in a total amount of $3,780.50. Vouchers were not drawn in payment of the expenses incurred for the reason that the same were presented after the biennial appropriation period had lapsed."

With reference to extradition expenses, Sec. 41 of Chap. 60, 1963 Ill. Rev. Stats., provides as follows: “When the punishment of the crime shall be the confinement of the criminal in the penitentiary, the expenses shall be paid out of the State Treasury.” It appears that in the instant case all qualifications for an award have been met.

Claimants are, therefore, hereby awarded the total sum of $3,780.50 payable as follows:

Joseph Swee and T. M. Jablonski......................$902.30
Nora Scannel ....................................... 220.00
Harold Marsicek and Henry Carr....................... 263.30
Raymond Toohey and Mary Jane Winn.................. 850.70
Harry Hecht and Raymond Delaney.................... 638.65
Raymond Cisco and Milton Edstrand....................431.65
O. W. Wilson, Superintendent of Police of the
City of Chicago............................ 473.90


text:
    (No. 5203
    Thermo-Fax Sales, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    Charles Kenney, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant sold to the Illinois Public Aid Commission during the months of March, June, and December, 1962, Thermo-Fax copy paper in the amount of $303.66. Because of the lapse of the appropriation from which said expenses could have been paid, claimant has now filed its claim in this Court for reimbursement.

The report of the Department of Public Aid, signed by Gershom Hurwitz, Assistant to the Director, acknowledges that the supplies were purchased, and that “claimant is justly entitled to $303.66,” and, further, that “the bills were presented after the close of the biennium, which was too late for payment.”

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

“Neither party objects to the entry of an order in favor of claimant, and against respondent, in the sum of $303.66.”

This Court has held in numerous decisions that where the evidence shows that the only reason the claim was not paid was due to the fact that, prior to the time that a statement was presented, the appropriation lapsed, an award will be made. Thompson vs. State of Illinois, 24 C.C.R 487.

Claimant, Thermo-Fax Sales, Inc., A Corporation, is, therefore, hereby awarded the sum of $308.66.


author: Perlin, C.J.

text:
    (No. 5205
    Fred Thornberry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

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

Claimant, Fred Thomberry, seeks recovery for loss of wages incurred when he was suspended and discharged from his position as an employee of the Department of Financial Institutions, Cemetery Care Division, State of Illinois, from February 1, 1962 to June 30, 1963, inclusive.

The complaint, which with the stipulation filed in this case constitutes the record, alleges the following: That claimant is presently unemployed; that on February 27, 1961, claimant was certified as a Financial Institution Examiner II in the Department of Financial Institutions and continued to perform the duties of the office until January 31, 1962; that on January 24, 1962, a written application for the discharge of claimant was filed with the Department of Personnel by the Department of Financial Institutions, and, on January 29, 1962, the charges were approved by the Department of Personnel effective as of January 31, 1962; that, within 15 days after the receipt of the charges seeking discharge, claimant requested the State Civil Service Commission to grant him a hearing on said charges.

Pursuant to such request, a hearing was set for March 9,1962, and was then continued by agreement of the parties to June 14, 1962, with claimant reserving any back pay rights, which might accrue to him. Testimony was heard before the Hon. Melvin H. Routman, hearing officer for the Civil Service Commission of the State of Illinois and evidence was introduced by both parties to said proceeding. On August 31, 1962, the hearing officer handed down his decision that claimant, Fred Thornberry, be discharged and removed from his position as Examiner II for the Department of Financial Institutions and from the services of the Department.

On September 25, 1962, the Civil Service Commission unanimously concurred in, approved and adopted the findings and decision of the hearing officer and certified said decree to the Director of Personnel, State of Illinois, for enforcement.

A complaint for administrative review of the decision of the Civil Service Commission discharging the claimant was filed in the Circuit Court of Brown County on October 22, 1962 by claimant, Fred Thornberry. On November 15, 1963, the Circuit Judge handed down his decision, which reversed the decision of the Civil Service Commission, and entered judgment for claimant. Claimant was ordered reinstated to his former position as Examiner II for the Department of Financial Institutions. The decision of the Circuit Court was affirmed by the Appellate Court for the Fourth District on June 11, 1964.

Claimant further alleges that because of his reinstatement he is entitled to back pay and benefits from February 1, 1962 to and including June 30, 1963, and that he has not received pay or benefits for this time because the funds of the Department of Financial Institutions appropriated for such period lapsed due to the expiration of the fiscal biennium, and that there is now due and owing to claimant by respondent the sum of $8,760.00. (Personnel Code, Chap. 127, Sec. 63(b), Ill. Rev. Stats.)

The stipulation submitted by the parties states that during the period of time in question, claimant earned the sum of $1,341.69, which amount he would not have earned had he been employed by the Department of Financial Institutions, and that the amount so received constitutes a set-off against said claim. The stipulation further states that claimant is entitled to receive the sum of $7,418.31 from respondent and that the amount has not been paid by the Department of Financial Institutions solely because of a lapse of available appropriations, said appropriations having lapsed as of July 1, 1963.

This Court has long held that where a Civil Service employee is illegally prevented from performing his duties and is subsequently reinstated to his position by a Court of competent jurisdiction, he is entitled to the salary attached to said office for the period of his illegal removal, but that he must do all in his power to mitigate damages. Schneider vs. State of Illinois, 22 C.C.R. 453; Poynter vs. State of Illinois, 21 C.C.R. 393; Smith vs. State of Illinois, 20 C.C.R. 202; Cordes vs. State of Illinois, 24 C.C.R. 491; Bryant vs. State of Illinois, case no. 5011; Farber vs. State of Illinois, case No. 5013.

No evidence of claimant’s failure to mitigate damages has been adduced in this instance. Consequently there being no question of law or fact, claimant is hereby awarded the sum of $7,418.31.


text:
    (No. 5207
    Axel Gilbert Anderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    R. W. Deffenbaugh, Attorney for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant is seeking an award for $11,370.00 for back salary as a Conservation Inspector I in the Department of Conservation of Illinois, Law Enforcement Division, from February 14, 1961, on which date he was unlawfully discharged, to June 30, 1963, plus court costs incurred by claimant in the amount of $110.30.

On February 1, 1961, William T. Lodge, Director of the Department of Conservation of Illinois, submitted to Maude Myers, Director of the Department of Personnel of Illinois, a written request for the separation of claimant from his employment as a Conservation Inspector I in the Department of Conservation of Illinois, Law Enforcement Division. Thereafter, claimant was laid off from his position on February 14, 1961.

Subsequently, claimant filed a complaint for mandamus in the Circuit Court of Sangamon County, Illinois, and, on March 9, 1964, a decree was entered directing William T. Lodge and Maude Myers to reinstate claimant to his position and title of Conservation Inspector I as of February 14, 1961.

From July 1, 1963 to the date of claimant’s reinstatement, the court directed the Auditor of the State of Illinois to issue salary warrants and the Treasurer of the State of Illinois to pay such warrants in the amount of claimant’s full salary and wages for such period.

From February 14, 1961 to June 30, 1963, for which period funds had lapsed, the Circuit Court order provided as follows:

“(e) That this Court orders and declares the plaintiff, Axel Gilbert Anderson, is entitled to and has a right to the full salary and wages of his said position as Conservation Inspector I in the Department of Conservation of Illinois from February 14, 1961, to June 30, 1963.”

On August 13, 1964, the Appellate Court for the Fourth District dismissed respondent’s appeal from the Circuit Court of Sangamon County and issued its mandate to the Circuit Clerk of Sangamon County.

The State of Illinois has paid claimant in the amount of $5,630.32, his full salary and wages for the period from July 1, 1963 to August 18, 1964, the date of his reinstatement.

Because of the lapse of appropriations, claimant has filed his complaint in this Court to recover his salary and wages for the period of February 14, 1961, through June 30, 1963.

In prosecuting his mandamus action in the Circuit Court, and in defending the State’s appeal in the Appellate Court, claimant incurred court costs in the amount of $110.30.

The mandate of the Appellate Court reads in part as follows:

“And it is further considered by the Court that the said appellee recover of and from the said appellants costs by him in this behalf expended the same to be collected in due course of law.”

There are two issues in this case:

(1) Respondent admits that claimant’s gross wages for the period of February 14, 1961, through June 30, 1963, are in the amount of $11,370.00, but denies that claimant is entitled to an award for the full amount;

(2) Respondent denies that claimant is entitled to an award for his Circuit and Appellate Court costs.

It was stipulated by the parties that claimant’s outside earnings for the years in question were as follows:

1961 ...........................$ 370.00
1962 ........................... 2,263.55
1963 (January 1, 1963, to June 30,
1963, inc.).............. 868.02
Total.................$3,501.57

This Court is of the opinion that neither the language of Sec. 63-b-111, Chap. 127, 1963 Ill. Rev. Stats., nor the order of the Circuit Court of Sangamon County bars this Court from independently determining claimant’s damages —both with respect to mitigation of damages (see Schneider vs. State of Illinois, 22 C.C.R. 453), and set-offs of outside earnings during the period of unlawful dismissal (see Poynter vs. State of Illinois, 21 C.C.R. 393).

There is no authority in the Court of Claims Act for the payment of court costs expended in another court by a claimant. This part of the claim is denied.

Claimant, Axel Gilbert Anderson, may seek back pay for the period from February 14, 1961, to June 30, 1963, in the amount of $11,370.00, less credit to the State for supplemental earnings during said period of time in the amount of $3,501.57, which figure has been stipulated between the attorney for claimant and the Attorney General, leaving a net amount of $7,868.43.

Claimant is, therefore, awarded the sum of $7,868.43.


text:
    (No. 5223
    Ruel R. Hindman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    Michael F. Ryan, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Perlin, C.J.

On March 22, 1965, claimant, Ruel R. Hindman, filed his complaint in this Court seeking recovery for loss of wages for the period of January 16, 1963 to June 30, 1963, during which time he alleges he was laid off and prevented from performing his duties as a Marketing Specialist for the Department of Agriculture.

A stipulation in lieu of evidence was entered into by and between claimant and respondent, by their respective attorneys, and is as follows:

“That claimant, Ruel R. Hindman, after taking and successfully passing the examination held by the Civil Service Commission of the State of Illinois, was on, to-wit, June 8, 1956, certified and appointed to the position of Marketing Specialist in the Devision of Markets of the Department of Agriculture of the State of Illinois.
“That claimant performed his duties in said position, and received the salary appropriated therefor and attached thereto until, to-wit, January 15, 1963, at which time he was laid off from his position by the then Director of the Department of Agriculture of the State of Illinois, the reason assigned for said lay-off being: ‘Lack of requests by Fruit Industry and Fruit Brokers for fruit and vegetable Marketing Specialist work, which is authorized under Public Law No. 733.’
“Thereafter, on, to-wit, July 23, 1963, claimant filed a complaint for mandamus against the agents of respondent, the Auditor of Public Accounts of the State of Illinois and the Treasurer of the State of Illinois; said complaint being filed in the Circuit Court of Cook County in cause entitled ‘People of the State of Illinois, ex rel. Ruel R. Hindman, Plaintiff, vs. Robert K. Schneider, Director of the Department of Agriculture of the State of Illinois, Et Al, Defendants,’ No. 63 C 12550; that in said complaint claimant asserted that his lay-off was illegal and requested his reinstatement, together with back salary.
“Thereafter, the defendants in said proceeding filed their answer to the said mandamus complaint, and on, to-wit, February 10, 1965, the Hon. Charles S. Dougherty, Judge of the Circuit Court of Cook County, entered a judgment order for the writ of mandamus; a true and correct copy of said judgment order being hereto attached, marked exhibit A, and by reference thereto incorporated herein; that in and by said judgment order the Circuit Court found that he had been illegally laid off from his position, and found that claimant was entitled to the payment of his salary for the period from January 16, 1963 to August 16, 1963 at the rate of $7,200.00 per annum.
“That by virtue of the lapsing of the biennial appropriation, expiring June 30, 1963, respondent is unable to pay the back salary due for the period from January 16, 1963 to and including June 30, 1963.
“That the judgment order, hereinabove referred to, was entered in full settlement of all controversies involved in said litigation, growing out of the lay-off of claimant, as aforesaid, and said judgment order is in full force and effect; has not been appealed from, and is in all respects final.
“That claimant, Ruel R. Hindman, by his counsel again represents that this claim has not previously been presented to any State Department or to any officer thereof; that claimant is the owner of said claim, and no assignment or transfer thereof has been made; that claimant is justly entitled to the amount herein claimed from the Department of Agriculture of the State of Illinois, after allowing all just credits; that claimant believes the facts stated in his complaint to be true; that this claim or any claims arising out of the occurrences set forth in the complaint have not previously been presented to any person, corporation or tribunal, other than the Department of Agriculture of the State of Illinois.
"That the amount due claimant from respondent for back salary covering the period from January 16, 1963 to August 16, 1963 is $4,200.00, and the amount claimed herein for the period from January 16, 1963 to June 30, 1963, being the period which has lapsed under the 1961-1963 biennial appropriation, is $3,300.00.”

A Departmental Report, signed by R. M. Schneider, Director of the Department of Agriculture, has also been filed in this matter. It admits that claimant was employed as a certified Marketing Specialist in the Department of Agriculture, Division of Markets, until January 16, 1963, at which time he was laid off. Further, it states that a judgment order for the writ of mandamus was entered by Hon. Charles S. Dougherty, but that due to the expiration of the biennium, the Department of Agriculture is unable to pay the salary of claimant for the period of January 16, 1963 to June 30, 1963.

There is no evidence to indicate that claimant failed to make a reasonable effort to mitigate his damages.

From the record in this case it would appear, and we are of the opinion that claimant is entitled to an award for his salary for the period of January 16, 1963 to June 30, 1963.

An award is, therefore, hereby made to claimant, Ruel R. Hindman, in the sum of $3,300.00.


text:
    (No. 5224
    Poor Sisters of St. Francis Seraph of the Perpetual Adoration, Inc., An Indiana Not-For-Profit Corporation, d/b/a St. Francis Hospital, Evanston, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    Corcoran and Corcoran, Attorneys for Claimant.
    William G. Clark , Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Dove, J.

On December 30, 1963, claimant, Poor Sisters of St. Francis Seraph of the Perpetual Adoration, Inc., An Indiana Not-For-Profit Corporation, d/b/a St. Francis Hospital, Evanston, Illinois, presented its claim to the Cook County Department of Public Aid for hospitalization services rendered one Isabelle Corrigan. Although the Department had determined that the subject patient was eligible to receive aid under its program of Assistance to the Medically Indigent Aged, it denied the claim for services on the grounds that the appropriation for the biennium had lapsed at the time the statement was received by its office.

Thereafter, on April 8, 1965, a complaint in this matter was filed in the Court of Claims. It contains a request for payment of the sum of $1,081.72, representing charges for the hospitalization services furnished said Isabelle Corrigan for the period of May 5, 1963 to June 11, 1963.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which, in essence, supports the position of claimant in this matter. It indicates that claimant did furnish the services to the said Isabelle Corrigan, and that the reasonable and equitable charge for such services was the sum of $1,081.72. The stipulation reflects the further fact that the appropriation from which payment could have been made had lapsed prior to the time the statements were submitted. These facts are not refuted by the Department of Public Aid in the Departmental Report filed in this case on April 28, 1965.

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. Memorial Hospital of Du Page County, A Corporation, vs. State of Illinois, Case No. 5197, opinion filed January 12, 1965; Siegert Mathewson Medical Group, A Partnership, vs. State of Illinois, Case No. 5211, opinion filed April 20, 1965. It appears that all qualifications for an award have been met in the instant case.

Claimant, Poor Sisters of St. Francis Seraph of the Perpetual Adoration, Inc., An Indiana Not-For-Profit Corporation, d/b/a St. Francis Hospital, Evanston, Illinois, is, therefore, hereby awarded the sum of $1,081.72.


author: Pezman, J.

text:
    (No. 5228
    Mildred Davis, Administrator of the Estate of Robert M. Davis, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

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

Claimant, Mildred Davis as Administrator of the Estate of Robert M. Davis, deceased, seeks reimbursement for salary for the decedent for the period of his illegal suspension and illegal discharge from his employment as a Financial Institution Examiner I in the Department of Financial Institutions of the State of Illinois for the period of February 1, 1962 to and including June 30, 1963.

A complaint was duly filed by the said Administrator in the Court of Claims, and respondent has filed no responsive pleadings thereto. A stipulation by and between claimant, as Administrator, and the Attorney General was entered into, which provides as follows:

“It is hereby stipulated and agreed by and between claimant, Mildred Davis, Administrator of the Estate of Robert M. Davis, deceased, her attorneys, Scott and Sebo, and respondent, State of Illinois, by William G. Clark, its Attorney General, that the complaint filed herein and the report of the Department of Financial Institutions signed by Joseph E. Knight, Director, which has been filed in this cause pursuant to Rule 14, shall constitute the record in this case.
“It is further stipulated and agreed that this claim arises out of the claim for wages by the claimant’s deceased, Robert M. Davis, as an employee of the Department of Financial Institutions, Cemetery Care Division, State of Illinois, covering the period of February 1, 1962, to and including the 30th day of June, 1963, totaling $8,135.00, as set out in said complaint. That during said period of time the claimant’s deceased earned the sum of $1,106.67, which amount he would not have earned had he been employed by the Department of Financial Institutions in the aforesaid capacity, and that the amount so received constitutes a set-off against said claim. That attached to this stipulation and made a part hereof are copies of the income tax returns of claimant’s deceased, Robert M. Davis, for the years of 1962 and 1963. That during the year of 1962 he earned a total of $712.50, all of which was earned during the months of December, 1961 and January, 1962 while employed by the Department of Financial Institutions, as is established by the memorandum from the said Department, marked exhibit A and attached hereto, and made a part hereof. That the amount of $712.50 is not a part of this claim. That during the year of 1963, from January 1, 1963, to June 30, 1963, claimant earned the sum of $1,106.67, as is shown by exhibit 2c, attached hereto and made a part hereof. That claimant’s deceased’s income tax return, a copy of which is attached hereto, marked exhibit 2 and made a part hereof, shows his earnings and the earnings for the entire year of 1963, and the earnings of his wife, Mildred Davis, as shown by exhibits 2a and 2b; that claimant’s deceased had made every reasonable effort to mitigate damages.
"That the sum of $1,106.67 is the amount stipulated herein as a set-off against the claim of the Estate of Robert M. Davis, deceased, claimant herein. That claimant is entitled to receive the sum of $7,028.33 from respondent, State of Illinois. That said sum has not yet been paid by the Department of Financial Institutions solely because of a lapse of available appropriations, said appropriations having lapsed as of July 1, 1963.”

From the facts set forth in the stipulation it appears that the decedent made every reasonable effort to mitigate the damages caused by his illegal discharge. The appropriation for such services rendered prior to June 30, 1963 lapsed.

The Court of Claims has expressed itself thoroughly on this point in the case of Schneider vs. State of Illinois, 22 C.C.R 453, as well as in the cases of Secaur vs. State of lili nois, 21 C.C.R. 364, and Poynter vs. State of Illinois, 21 C.C.R. 393.

Claimant is, therefore, hereby awarded the sum of $7,028.33.


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    (No. 5052
    Leonard Benvenuti and Mary Benvenuti, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1965.

    Perona and Perona and Tobias G. Barry, Attorneys for Claimants.
    William G. Clark, Attorney General; John C. Connery, Special Assistant Attorney General, for Respondent.
   Dove, J.

The facts of the case are as follows:

Leonard Benvenuti and Mary Benvenuti are the owners of a parcel of real estate, which measures approximately 80 by 138 feet, and is located at the northeast comer of Center and Plain Streets, Peru, Illinois. The real estate is improved with a two-story imitation brick building, the upper story of which is a three-bedroom flat, and is the claimants’ residence. Claimants purchased the premises in 1934, and have since that time made the flat their residence. Except from 1950 for the period to 1958, they have operated the lower floor as a restaurant and tavern.

In December of 1955, the first of several contracts was awarded for a highway bridge and cloverleaf improvement located immediately to the east and north of claimants’ property. Construction on the bridge was stopped on June 16, 1956, and it was opened to traffic by June of 1962. The completed construction rises 30 to 35 feet above the ground level of claimants’ property, and is built upon a dirt fill. Claimants’ direct access to the highway was lost when Plain Street was closed as part of the construction of the cloverleaf.

It appears from the pleadings and evidence that claimants suggest they incurred damages of almost every conceivable type as a consequence of this highway improvement, including loss of business profits, reduction in the value of their real estate, change of water course, trespass by State employees, 2, 4-D spray damage to their garden, and damages to the roof of the building caused by the debris thrown from the bridge by persons unknown.

Most of the facts appear to be supported by photographs, which were introduced in evidence. It further appears from the evidence that there were a number of storms or heavy rainfalls during the course of construction, particularly in 1962, which caused surface water carrying dirt and debris to flow in and about claimants’ premises from the earthen embankments. It also appears that the Department of Public Works and Buildings did in August of 1962 construct a concrete ditch at the foot of the cloverleaf, immediately to the north of claimants’ property, to divert surface water around and along the west right-of-way of the bridge.

Proofs regarding the loss of market value are in conflict, but the evidence does establish loss of market value beyond any doubt, which we find to be $4,000.00.

Respondent’s suggestion that the Statute of Limitations is.at least a partial defense to this action is unfounded. This was a continuing claim, which began in 1956, and the entire project must be considered as one improvement. (Kershaw vs. State of Illinois, 21 C.C.R. 389.)

From the evidence, the Court finds that claimants have suffered damages in the amount of $4,074.00, consisting of $4,000.00 for loss of market value of the real estate, and $74.00 for plants destroyed in August of 1960 by 2, 4-D spray.

An award is, therefore, made to claimants, Leonard Benvenuti and Mary Benvenuti, in the sum of $4,074.00.


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    (No. 4957
    John Edward Schuck and The Maryland Casualty Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 25, 1965.

    Nick D. Vasileff and V. Robert Matoesian, Attorneys for Claimants.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimants seek recovery of $677.96 for monies expended to repair a 1959 Chevrolet automobile, which was owned by claimant John Edward Schuck, and insured by claimant The Maryland Casualty Company.

This claim arises out of an accident, which occurred when Leo Edward Schuck, the son of claimant, was operating the vehicle on July 13, 1960 at about 4:50 P.M. along a frontage road, which ran parallel to Interstate Route No. 70, near the City of Collinsville, and collided with a tree.

Route No. 70 and the frontage road were being constructed under the supervision and by authorization of the State of Illinois, Division of Highways. Claimants contend that the State of Illinois failed to maintain the frontage road in a reasonably safe condition, and failed to warn the driver of a sudden drop-off, decline, and sharp curve in the road, which were not apparent until reached by the motorist.

In order to recover, claimant must prove by a preponderance of the evidence (1) that Leo Schuck was free from contributory negligence; (2) that respondent was negligent; and (3) that such negligence was the proximate cause of the accident.

The evidence shows that the accident happened in the daylight. The weather was clear, and the road was dry.

The Departmental Report, which was submitted by the Division of Highways, describes the Frontage Road as follows:

“The design, intent and purpose of a frontage road is to afford ingress and egress to owners whose properties lie adjacent thereto. A frontage road differs from an access highway in that the former does not connect with the adjoining primary highway route; in this instance with Federal Aid Interstate Route No. 7, Section 60-8, Madison County, Illinois.
The frontage road has its beginning at Keebler Road, and extends southwesterly a distance of approximately 4,925 feet, where it terminates at the entrance to the L. E. Morris property. The centerline of the frontage road lies 100 feet northwesterly from Route No. 7, and has the following construction characteristics: It is 20 feet wide with a 5 foot earth shoulder on each side, and has a bituminous treated surface on a base course of crushed stones 6 inches in thickness.”

Leo Edward Schuck testified that immediately before the accident he was on North Keebler road on his way back to his office. “At the point where North Keebler goes under Interstate Route No. 70 there is an access road, which I wanted to use to save me some time in getting back to the office.”

He testified that he was traveling west on the access road to reach Interstate Route No. 70. He had followed this route before. He found that the connecting lanes, which he had previously used were blocked by posts, and, thinking that there would be some outlet to the highway, he kept on, and

“before I realized I was looking — I was at the top of a hill. You might say I was going level all the time. I didn’t actually go up a hill, but I was at the top of a drop-off, you might call it, and all I could see was down, and the road dipped pretty quick, and curved to the right at about a forty degree angle, and, of course, the first thing I did I applied the brakes. It did no good because the chat was loose, and there was a tree straight ahead, which, of course, I tried to avoid, and I guess if it hadn’t been for the slippery grass right there, then I probably wouldn’t have slid into the tree head on. However, I did sideswipe it, and I might mention the weather was good, and the light was sufficient, and the sun wasn’t bothering me or anything, and it was a good road, and I mean, it was not bumpy or anything or not slippery, nothing of that nature; also the road was in no way or in no manner posted as to speed limits or restricting of the thoroughfare in any manner at all. I mean there was nothing, no signs of any nature placed alongside the road.”

Mr, Schuck stated that he had driven on the road in question once the week before the accident, but had never driven down the road to the point “where it drops down.”

The road onto which he turned was not marked as an access road, nor were there any signs of identification. Schuck stated that he turned off Keebler onto the frontage road in order to avoid the rough road, which lies between the underpass of Interstate Route No. 70 and City Route No. 40. He expected to get onto Interstate Route No. 70, although there were no signs indicating that he would do so by going in that direction.

Keebler Road was a two lane road of oil and chat, and is a country road. The point at which Schuck turned off onto the frontage road was not marked as a State route. The road in question was of tar and chat, and the chat was still loose. He drove about a mile and a half before the accident occurred. The “road,” which he had used to get from the frontage road to Route No. 70, was a dirt path, which had been used by a construction company. He then drove across the shoulder of Route No. 70 to get onto the highway. Schuck estimated his speed at 35 miles per hour at the time of the accident, but he was not watching the speedometer. He did not use his brakes until he noticed that the road curved. He missed the curve, then collided with the tree, and thereby damaged the automobile.

There were no other witnesses to the accident.

Sergeant Allen E. Smith of the Illinois State Highway Police investigated the accident. He stated that no signs designated the frontage road, and that the road was in no way connected with Interstate Route No. 70. He left his car on Route No. 70, and walked a short distance to reach the accident scene. Sergeant Smith patrolled the area as part of his duties, but had never traveled on the frontage road, nor did he recall at any time seeing cars travel onto Route No. 70 from the frontage road.

Carl Schlosser, a construction engineer with the Illinois Division of Highways, testified that Interstate Route No. 70 was a limited access road, and that the frontage road is a service road intended for the use of the property owners on that side of the Interstate. The frontage road is 20 feet wide, and is not marked with a center line. It ends at the L. E. Morris property. He further testified that contractors did use a connection between the frontage road and Interstate Route No. 70 prior to the time Interstate Route No. 70 was open for traffic, but, when the highway was opened, the contractors were restricted to the same traffic pattern as the motoring public.

It is the opinion of the Court that claimant has not proven freedom from contributory negligence. It is the duty of a driver to keep his vehicle under control, and failure to do so amounts to negligence.

He has shown no hazardous or dangerous condition of which the State had either actual or constructive notice. There have apparently been no accidents or complaints in regard to this portion of the highway, nor is it apparent that failure to post signs on a roadway used by so few motorists was a breach of respondent’s duty to keep its highways reasonably safe for ordinary travel by persons using due care and caution for their own safety. The State is not an insurer against all accidents which occur on its highways. (Beenes vs. State of Illinois, 21 C.C.R 83). (Hook vs. State of Illinois, 22 C.C.R. 629, Gray vs. State of Illinois, 21 C.C.R. 521, Link vs. State of Illinois, 24 C.C.R. 69, Vesci vs. State of Illinois, 24 C.C.R. 23).

Leo Schuck was not unaware of the gravel surface of the road, since he had traveled about one and a half miles on the same before reaching the curve. His own testimony indicated that he was not looking at the road, but was looking for a way to cross from the frontage road to Interstate Route No. 70 instead of anticipating a possible change in the curvature of the road.

For the foregoing reasons, claimants are hereby denied recovery.


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    (No. 4976
    Donald Emm and John Vanda, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 25, 1965.

    Thomas R. Flood, Attorney for Claimants.
    William G. Clark, Attorney General; Edward G. Finnegan and Edward A. Warman, Assistant Attorneys General, for Respondent.
   Dove, J.

Claimants, Donald Emm and John Vanda, filed their complaint in this Court on April 27, 1961. They seek to recover for damages to Emm’s car as well as compensation for personal injuries, alleged to have been sustained on April 30, 1960, while driving on State Route No. 17, approximately 17 miles west of Kankakee, Illinois. The amount of damages claimed by Claimant Emm is $3,500.00, and that by Claimant Vanda is $2,500.00.

From the evidence it appears that on April 30, 1960 at 11:00 P.M., claimants collided with a bridge, which was being constructed on Route No. 17, approximately 17 miles west of Kankakee, Illinois. Donald Emm was the owner and driver of the 1955 Pontiac Sedan, and John Vanda was a passenger riding in the right front seat at the time of the accident.

Route No. 17 west of Kankakee was under construction at the time. Detour signs were posted. Numerous signs were posted for the direction and control of westbound traffic from Washington Street in Kankakee to 17 miles west of Kankakee were in place on the date of the accident. All of the signs faced east, were reflectorized, and had their messages in black on yellow backgrounds. Signs at the west edge of Kankakee at Washington Street indicated that the road was closed to all except local traffic, and the Superintendent of Highways. Emm testified that he had his lights on bright; that he saw signs “17 Closed West Detour”; another, as he approached Lehigh Road, reading “To Illinois 17 Detour 4 Miles”; another, as he approached Warner Bridge Road 10 miles west of Kankakee, which read “17 Closed West Detour Use 45-52 to 115.” These signs were all 36" X 36" in size. Emm also testified that he saw another sign at the Warner Bridge Road saying “Barricade Ahead,” and beyond that sign another sign saying “Bridge Out,” and just beyond that sign another sign saying “Road Closed.” All these signs were 36" X 36" reflectorized. At the next road, Goodrich Road, further travel westward on Route No. 17 was blocked by a permanent barricade across the middle of the road, which was equipped with flashing warning fights and a sign “Barricade Ahead.” He did not turn off at any of the posted detour signs at Washington Street, Wall Street, Lehigh Road, Warner Bridge Road or Goodrich Road detours.

Of the three bridges, which were out in the construction area, the first was west of the Goodrich Road barricade, and was protected by a permanent barricade with flashing warning fights and a 24" X 24" reflectorized sign on the shoulder which read “Barricade Ahead.” Approximately 400 feet further there was a “saw-horse” in the middle of the road upon which hung a 36" X 36" reflectorized sign reading “Bridge Out,” and a run-around or by-pass around the bridge, which claimants followed.

As they proceeded along the “rough road” at about 40 to 45 miles per hour, they saw another 24" X 24" reflectorized sign on the shoulder, which read “Barricade Ahead,” and 400 feet further down the road a barricade across the road with a 36" X 36" reflectorized sign on it reading “Bridge Out” and indicating another by-pass around the bridge. Claimants proceeded on this by-pass, and continued west on Route No. 17.

Approximately two miles further, the road became “definitely bumpy and with loose gravel,” and they saw another 24" X 24" reflectorized sign reading “Barricade Ahead.” Claimants saw this, and “began to slow down, because the road was so bad at this point, and he figured there were more detours ahead,” and they proceeded west for about 400 feet at about 40 to 45 miles per hour, where they hit a “saw-horse” barricade, which was knocked down, and lying in the road. To this barricade was attached a 24" X 24" reflectorized sign reading “Bridge Out.” Claimants’ right front tire struck the “saw-horse” barricade, and “they immediately ran into building materials and debris, which were piled on the pavement.” Emm applied the brakes, and the car slid forward into a 2% foot high concrete abutment which was the floor of the bridge. The resulting impact totally wrecked the car and caused the injuries complained of.

Emm sustained cracked ribs, contusion above his right eye, lacerations to his left elbow, and was “very badly shaken up.” His doctor bill was $12.00 that evening, plus a later doctor and hospital bill of $48.00, and he lost twelve working days.

Vanda’s injuries occurred as he was thrown into the windshield at the time of impact. He suffered facial lacerations, which required sixteen stitches, and a chipped tooth. He was never admitted to a hospital. His doctor bill was $20.00, and he lost three weeks of work; He claims a vision loss in his left eye from 20/20 to 15/20, and has 20/20 vision in his right eye.

Two State Highway Engineers testified for respondent, as did the State Trooper who worked the accident. The engineers testified as to the various road signs and construction warnings. The State Trooper verified that all warning signs were up after the accident, except for the knocked-down “saw-horse” east of the third bridge, which claimants testified they struck.

Claimant Emm testified further that they had each had six or eight small beers during the day, and had eaten supper about 10:15 P.M. in Kankakee, about 45 minutes prior to the accident. In Kankakee they had asked directions from a gas station attendant, as they were not familiar with the roads in the area, and had 60 miles to go to their home. Then, while traveling on Route No. 17 prior to the accident, both Claimants had discussed the fact that they were in a construction area, and questioned whether they had been given correct directions.

It is undisputed that in the 10.2 miles prior to the construction zone there were nine warning signs indicating that the road was closed, and also indicating an alternate route. Prior to entering the actual construction zone, there were 5 roads on which to turn and take an alternate route, and thus avoid the construction zone.

The construction zone itself began behind a permanent-type barricade, which extended across the middle of Route No. 17, and was illuminated by flashing warning lights. Claimants went around the barricade, and traveled approximately 2.8 miles in the construction area, by-passing two “Bridge Out” and warning signs before reaching the scene of the accident at the third bridge.

The evidence is ample that both the driver of the car, Donald Emm, and his passenger, John Vanda, were aware of the prohibition against entering the construction zone prior to the time of their entry, and discussed the fact that the road was closed to traffic; that there were warning signs all along the road; and that they were definitely going the wrong way.

The contention of claimants is that the State of Illinois was negligent in maintaining this particular portion of Route No. 17, and they allege their freedom from contributory negligence. The evidence fails to establish that claimants were in the exercise of due care. The record and claimants’ own testimony prove that the proximate cause of the accident was the negligence of claimants, and that there was no negligence on the part of respondent.

We have previously held that the burden of proof is upon a claimant to show freedom from contributory negligence, and, where he fails to meet such burden, his claim will be denied. (Paul I. Howell, as Administrator of the Estate of Luella Howell, Deceased, vs. State of Illinois, 23 C.C.R. 141 at 145). A party has no right to knowingly expose himself to danger, and then to recover damages for an injury which he might have avoided by the exercise of reasonable and ordinary care. (Withey vs. Ill. Power Co., 1961, 32 Ill. App. 2d 162). Each of the claimants saw, and knew of the existence of the signs. They also knew of the danger of traveling on a closed road with bridges out and that they were going the wrong way. Yet they ignored all of the warnings, and at 11:00 P.M., after spending a day, which included drinking some six to eight beers apiece, they sped down an unfamiliar road, which was under construction, all the while discussing but disregarding numerous signs stating “17 Closed West Detour,” “Road Closed,” “Barricade Ahead,” and “Bridge Out.”

The State of Illinois is not an insurer against all accidents upon its highways, but, as we have previously held, it is required only to keep them in a reasonably safe condition for the purpose to which the portion in question is devoted, and the placing of adequate signs warning of the conditions to be met fulfills the obligation of the State to the users of the highway. (Grant, Et Al, vs. State of Illinois, 21 C.C.R 563).

It is evident that claimants have failed to prove their asserted causes of action by a preponderance or greater weight of the evidence.

Awards to claimants, Donald Emm and John Vanda, are hereby denied.


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    (No. 4990
    Joel Resnick, A Minor, By Samuel Resnick, His Father and Next Friend, and Samuel Resnick, Individually, Dorothy Resnick, Lillian Alpert, and Shirley Alpert, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1965.

      Petition of claimants for rehearing denied June 25, 1965.

    Angelos and Angelos, Attorneys for Claimants.
    William G. Clark, Attorney General; Samuel I. Neiberg and Gerald S. Grobman, Assistant Attorneys General, for Respondent.
   Dove, J.

Claimants bring this action to recover damages for injuries to their persons and property, which were sustained on December 3, 1960 at the intersection of Mannheim Road and Washington Boulevard, near the Village of Bellwood in Cook County, Illinois.

From the transcript of the evidence, it appears that on said date, at about 7:45 P.M., Joel Resnick, a minor, age 18, was driving Dorothy Resnick’s automobile in a northerly direction on Mannheim Road, and caused it to come to a stop at the intersection of Washington Boulevard and Mannheim Road. The front seat was occupied by Joel Resnick, the driver, and his mother, Dorothy Resnick. The rear seat was occupied by Samuel Resnick, father of the driver, and Shirley and Lillian Alpert, sisters of Dorothy Resnick. On February 8, 1963, subsequent to the filing of this action, Claimant Shirley Alpert died, and her claim has been abated.

While stopped, waiting for the traffic signal to change, claimant’s automobile was struck on the left rear and side by a truck, which was owned by the State of Illinois, and was driven by one Arthur Cihlar, a maintenance worker for the State of Illinois, Division of Highways. On this particular day, Saturday, he was working as a watchman in the Highway Department Garage, having volunteered for said assignment at the close of work the day before.

A Departmental Report was filed by respondent. It states that the driver of the truck was a maintenance worker; that the scope of his duties did not include the operation of a division-owned automobile or truck; and, that his use of the truck on the day of the accident was unauthorized.

Dorothy Resnick testified that, as a result of the collision, she received injuries to her chest, neck and head; that she saw Dr. Peter Hatzis on the evening of the accident, on two other occasions at her home, and about twelve times at his office. She also testified that she was employed as a clerk for the Chicago Police Department at a salary of $66.00 for a five-day week; that, as a result of this accident, she was off work for seven days, which amounted to the sum of $92.00.

Lillian Alpert testified that she was sitting in the center of the rear seat at the time of the accident; that she sustained injuries to the left side of her face and cervical spine; that she was attended at home by Dr. Peter Hatzis on the evening of the accident, twice more at home, and several times at his office.

Joel Resnick testified that he was driving the automobile on the night in question; that he sustained injuries to his chest, shoulder and elbow; that he was attended by Dr. Peter Hatzis at home on the night of the accident, and saw Dr. Hatzis at his office six or seven times thereafter. He stated that he now feels fine, and apparently has no ill effects from the accident.

Samuel Resnick testified that he was sitting in the rear seat of the automobile at the time of the accident; that he sustained injuries to his left jaw, chest and neck; that he was seen by Dr. Hatzis at home on the evening of the accident, and saw the doctor at his office eight or ten times thereafter; and, that he lost one day from work.

Dr. Peter Hatzis, a physician and surgeon, testified that he treated all of the claimants, attending them at their home on the night of the accident, and at his office on various other occasions. His diagnosis of each of the claimants substantiated their injuries.

Arthur Cihlar was called as a witness for claimants, and testified that he was employed by the State of Illinois from the end of 1959 until 1961; that he was employed as a maintenance worker in the Maintenance Department of the Division of Highways; that, at the time and place in question, he was operating the dump truck that struck the claimants’ vehicle; that he received a phone call regarding a hole in a road; that he loaded the truck with sand and gravel, and was proceeding to the location when he struck the car while making a left turn at the intersection of Mannheim Road and Washington Boulevard; and, that on the day of the accident he had no driver’s or chauffeur’s license. The witness further testified that he volunteered to work on Saturday, and received the keys from the superintendent; that this was the first time that he had done this type of work, and, although he reported for work at four o’clock in the afternoon, he had had four or five highballs at a bowling alley before reporting. The witness further testified that he received a telephone call from a man in the State Highway Office saying that “traffic is tied up on Washington and Mannheim, that I am to take the bombs and flares away and fill the hole with gravel so that the cars can ride over it.”

Arthur Cihlar further testified that he did not know who called him, and that he never found the hole or the lights and flares mentioned by the party on the telephone. After the accident, the police charged the witness, Cihlar, with driving under the influence of intoxicating liquor, negligent driving, and with having no driver’s license.

Steven Komerek was called as a witness for respondent. He testified that he is now retired, but on the day of the accident was supervisor for the Illinois Division of Highways at the Hillside Garage; that he was Arthur Cihlar’s supervisor, and picked him for the job as watchman on the Saturday in question, after Cihlar had volunteered to work. He further testified that he gave Cihlar verbal instructions as to his duties; that he showed him the telephone, the maps, and the names of the men in each district that he was to call in case of trouble; that if he couldn’t get a certain man, he was to call the witness; arid that, as watchman, he was not supposed to leave the garage. The witness, Komerek, further testified that he never received a report of any damage or hole on Mannheim Road or Washington Boulevard.

The record raises serious doubt as to the credibility of Arthur Cihlar’s testimony that he drove respondent’s vehicle, while endeavoring to promote the State’s business.

The evidence discloses that the witness, Cihlar, had four or five drinks a few hours prior to his reporting for work on the evening in question, and we are of the opinion that Arthur Cihlar committed his tortious act, while on a “frolic of his own,” and for a purpose wholly unconnected with the work he was hired to perform. Where an employee, without the express or implied consent, has his employers vehicle on a journey of his own, for a purpose wholly unconnected with the work he is hired to perform, his relationship is suspended during the whole of such journey. Cohen vs. Fayette, 223 Ill. App. 458.

The Court finds that claimants have wholly failed to sustain their burden of proving that they are entitled to an award for injuries and property damage, which were sustained as a result of this accident, and the complaint is hereby dismissed.


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

      Opinion filed November 9, 1965.

    Gosnell and Benecki and John W. Preihs, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

On June 3, 1964, claimant filed her petition for reimbursement of monies expended for nursing care and help, medical services, and expenses for a period of time from February 1, 1963 to February 1, 1964.

Claimant was injured on February 2, 1963 in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness, and general paralysis. The facts are fully detailed in the case of Penwell vs. State of Illinois, 11 C.C.R. 365, in which an initial award was made, and at which time jurisdiction was retained to make successive awards in the future.

The present petition alleges that there has been no improvement in the physical condition of claimant; that she is still bedridden; that complete paralysis of her lower abdomen and legs has continued; that she remains confined to bed; that her condition generally continues as it has been related to be in the petition; and, that she required constant care by physicians, registered and practical nurses, and other practical help during the period of time claimed above. Attached to the petition and made a part thereof by reference is an itemized statement or bill of particulars, marked Exhibit No. 1, showing all expenses incurred by claimant from February 1, 1963 to February 1, 1964 for said medical, nursing, and other expenses, and, in explanation thereof, affidavits have been filed in said cause by Walter W. Hutton, a Doctor of Osteopathy, practicing at Springfield, Missouri, and Hugh A. Townsley, a Doctor of Osteopathy, practicing at Dayton, Ohio.

An evidentiary deposition of Elva Jennings Penwell, claimant, was taken at the request of respondent. It was taken at Barnes Hospital in St. Louis, Missouri, and substantiates the claim of Elva Jennings Penwell with relation to her need for medical and nursing services. Testimony contained in the deposition indicates that claimant spends a great deal of time with her children in different locations throughout the country. Claimant testified, “Well, I go to live with my children when I don’t have any money. Just as of the last year I have been in Norfolk, Virginia. I have one daughter whose husband is in the Navy that is there. And then on up to Rhode Island, I was there last spring and last summer, and I returned to Dayton, Ohio, and I stayed there all winter until May when I came back to Beecher City.”

The Workmen’s Compensation Act provides that the necessary first aid, medical, and surgical services, and all necessary medical, surgical, and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury, shall be furnished to the injured person. The only limitation involved would be whether or not the services rendered were reasonably required to cure or relieve the claimant. Inasmuch as claimant’s condition is incurable, we must assume that the care required will be necessary for her lifetime. Claimant submitted the affidavits of two professional men who state under oath that the services claimed for in claimant’s petition are all necessary medically.

The Bill of Particulars attached to the petition discloses the amounts expended by the petitioner for the period of time claimed, from February 1, 1963 to February 1, 1964, to be as follows:

1. Nursing and practical help........................$1,123.10
2. Room and meals................................. 638.75
3. Drugs and supplies.............................. 485.34
4. Physicians and professional services................. 1,286.46
Total..............................$3,533.65

Respondent, by the Attorney General, directed the Court’s attention to Sec. 138.8, sub-paragraph (a), of Chap. 48, 1963 111. Rev. Stats., which provides that the necessary first-aid, medical, and surgical services, and all necessary medical, surgical, and hospital services thereafter, limited, however, to that which is reasonably required to cure or reheve from the effects of the accidental injury shall be furnished to the injured person. It was the Attorney General’s opinion that the only limitation on the amount of care to be furnished in the case at hand would be that which is reasonably required to cure or relieve claimant and further stated “that, since claimant’s condition is incurable, then, of course, it follows that the care required will be necessary for her lifetime.”

An examination of the petition and the supporting exhibits, as well as the testimony of claimant contained in the deposition, indicates that claimant’s condition has not improved, and that the expenditures of the sums of money set forth above were reasonably required to relieve claimant from the effects of the original accidental injury, which was previously determined by this Court to be compensable in the case of Penwell vs. State of Illinois, 11 C.C.R. 365.

An award is, therefore, made to claimant in the amount of $3,533.65 for the period of time from February 1, 1963 to February 1, 1964.

This Court reserves jurisdiction for further determination of claimant’s needs for additional care.


text:
    (No. 4856
    Hattie Mitchell, Administratrix of the Estate of Selma Mitchell, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Perry, Eubanks and Woolford and Chauncey Eskridge, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman and Lester Slott, Assistant Attorneys General, for Respondent.
   Dove, J.

Claimant, Hattie Mitchell, as Administratrix of the Estate of Selma Mitchell, deceased, filed her complaint in this Court on January 29, 1959 seeking an award for the wrongful death of her daughter, Selma Mitchell, who died on November 17, 1958, while a patient at the Chicago State Hospital, an institution for the mentally ill, operated by the State of Illinois. Claimant seeks an award of $25,000.00.

From the evidence it appears that the decedent, Selma Mitchell, at the age of twenty-two, died at the Chicago State Hospital following a fight on November 17, 1958 between the decedent and one Alice Ambrose, a ward attendant; that the decedent was subdued into unconsciousness by the use of wet towels wrapped around her neck; and, that she was given an injection of a drug after she had been subdued, and was pronounced dead approximately three hours later.

The evidence further discloses that Selma Mitchell, the decedent, had had a normal birth, and appeared to be a normal child in every way until the age of eight, at which time she began to have epileptic seizures. When she was nine years of age, she fell into the stove, and her clothing caught fire, seriously burning and disfiguring her from the neck down to her hips. From the age of nine through twenty-one, she was a patient at the Dixon State Hospital as a result of epileptic seizures, and her mother’s inability to properly care for her at home. The evidence discloses that Selma’s mental age was between five and seven years, and that she could take care of her own self, i.e. eating, washing, and dressing. She could do menial labor tasks such as cleaning and mopping floors. The evidence further discloses that, as Selma reached adolescence and physical maturity, she developed, emotional and antagonistic behavioral patterns, and occasionally had fights with other patients and supervisory personnel. As a result of the behavioral patterns, and upon request of Hattie Mitchell, Selma was transferred from the Dixon to the Chicago State Hospital in September, 1958.

The full medical history of Sehna Mitchell was transferred with her to the authorities at the Chicago State Hospital, and the medication for her tantrums and the control of her epilepsy seizures was prescribed and continued. Selma was assigned to Ward CW9 in the Chicago State Hospital, which was considered to be the control ward for the seriously disturbed epileptic patients.

Ward CW9 on the day in question had forty-five patients and one ward attendant, Mrs. Alice Ambrose, age forty-one. At approximately 9:00 A.M., Mrs. Ambrose told Selma and two other girls to start swabbing the floor. Selma did not want to do so, but reluctantly complied. The evidence discloses that some discussion was had between them, and that Selma called Mrs. Ambrose a “bitch.” The evidence further discloses that Mrs. Ambrose then called Selma a “bitch,” and a fight ensued. When other patients attempted to help Mrs. Ambrose, she said she would take care of Selma herself. She asked another patient to get the “persuader,” which was a wooden-handled radiator brush approximately eighteen inches long. One of the patients brought Mrs. Ambrose the “persuader,” and the evidence then discloses that Mrs. Ambrose got on top of Selma Mitchell, and commenced hitting her upon the head and body with the “persuader,” eighteen to twenty times until she broke the “persuader.” Then Mrs. Ambrose told another patient to go get a wet towel, which was put around Selma Mitchell’s neck, and twisted in the back until it was tight. Mrs. Ambrose then got behind Selma, pulled her to her feet, and asked her if she would stop fighting. One of the witnesses stated that at this time Selma was clawing at the towel, her mouth was open, and her eyes protruded. She made no answer, and Mrs. Ambrose then said: “Well, when I get you restrained against the post you will stop,” and proceeded to walk Selma to the post in the center of the room about eighteen feet away. While they were approaching the post, Selma was clawing at the towel, her mouth was open, and her eyes protruded. When they got about a foot from the post, Selma collapsed. Mrs. Ambrose then had another patient go to the clothes room to get restraints, and tied Selma to the post in a squatting position. At this time Selma’s head was hanging down, and Mrs. Ambrose told another patient to hold the towel around Selma’s neck while she went to prepare a needle, she administered a tranquilizer to Selma by injection in the buttocks.

The evidence further discloses that Mrs. Ida Booten, R.N., a supervisor, came into room about this time together with a Mrs. Fleming, an attendant in another ward, and a Mrs. Oxford. One of the attendants helped Mrs. Ambrose administer the tranquilizer. Mrs. Booten, the supervisor, did not say anything, and they took Selma out of the restraints, and helped put her to bed. At the hearing, a witness testified that Mrs. Ambrose was trying to get Selma’s pulse, but was unable to do so.

About 11:00 A.M., or approximately an hour after Selma was choked into unconsciousness, and before the patients went down to eat, one went over to Selma’s bed, and said she could not get a pulse, and stated “she is cold.” Mrs. Ambrose said: “Well, that is because the door is open.”

The doctor was not called, but came on his ward rounds at 1:15 P.M. At that time Mrs. Ambrose met him at the door, and told him what had happened. He wrote in the day book, and then went off the ward without looking at Selma who was still in bed. Mrs. Ambrose then went over to Selma’s bed, and said to another patient: “Call the doctor back. I can’t get a pulse on Selma.” The doctor returned in about fifteen minutes, and pronounced her dead.

The evidence further discloses that such treatment of patients by the ward supervisor in question and other hospital personnel, i.e., beating them with a “persuader,” and subduing them into unconsciousness by twisting a wet towel around their necks, was not an unusual occurrence at the Chicago State Hospital, and that Mrs. Ambrose had done this many times before.

Following the pronouncement of Selma’s death, no investigation was made by the Chief Nurse, Frieda Axen, R.N., until the next day when Mrs. Booten told Miss Axen that “her conscience wouldn’t let her rest; that it wasn’t right.” The Superintendent, Dr. J. H. Maltz, had an informal discussion with Mrs. Ambrose and other personnel to try to determine the facts. The original medical certificate of death, listing the cause of death as natural causes was superseded by the pathological report or autopsy showing, that the immediate cause of death was acute pulmonary edema.

On July 2,1958, the Superintendent of the Dixon School had advised Selma’s mother as follows:

“Dear Mrs. Mitchell:
“In reply to your letter regarding your daughter, Selma, we wish to inform you that she is in good physical condition. She eats and sleeps well, but her psychic condition is stationary.
Very truly yours,
DIXON STATE SCHOOL,
W. R. HANDY, Acting Superintendent
By: /s/ V. ULUHOGIAN, M.D.”

Some five months later, Selma was dead.

Included in the pathological report of the Cook County Coroner was the statement: “Died at 1:30 P.M. under odd circumstances.”

Handicapped though she was with a stiffened arm as a result of her burns as a child, there is evidence that Selma was able to do menial labor and cleaning, and was able to take care of herself, both inside and outside the institution.

It is not conclusive, in the Court’s opinion, that Selma would not be able to contribute to her mother’s financial support in the latter’s old age.

This Court is appalled by the unconscionable conduct and negligence in this instance of persons entrusted by the State of Illinois with the care of inmates of a State institution. It is difficult to understand, and impossible to accept, the course of conduct reflected by the evidence in this case. It is the responsibility of the State and its employees to provide a reasonable and humanitarian care for these less fortunate persons, and this responsibility was not met.

The evidence indicates that Sehna’s life expectancy would be approximately eight to thirteen years. If employed for ten years, and able to work one-half of the time at wages of $40.00 per week, Selma could have earned approximately $1,040.00 per year, or in ten years a total amount of $10,-400.00. Approximately one-half of this amount for the mother’s support would justify an award of $5,000.00; a further allowance of $500.00 for funeral expenses, which were incurred by Sehna’s mother, should also be made.

An award to claimant, Hattie Mitchell, as Administratrix of the Estate of Selma Mitchell, Deceased, is, therefore, made in the sum of $5,500.00.


text:
    (No. 5001
    James Strong, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

      Anthony Haswell and John T. Burke, Attorneys for Claimant.
    William G. Clark, Attorney General; Daniel N. Kadjan, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, James Strong, was convicted in the Criminal Court of Cook County on August 11, 1959 of unlawfully selling, dispensing, and possessing narcotics in violation of Sec. 3 of the Uniform Narcotic Drug Act (at that time Sec. 192.28 of the old Criminal Code), and was sentenced to the penitentiary for a term of twenty-five years to life. On appeal to the Supreme Court of the State of Illinois, his conviction was reversed on the ground that it was obtained upon evidence procured by entrapment. People vs. Strong, 21 Ill. 2nd. 320. Claimant was released from the penitentiary in April of 1961.

The facts in this cause seem to be well settled. Claimant testified that, between 3:30 and 4:00 P.M. on September 29, 1958, one James Reynolds paid a visit to claimant’s apartment. Claimant stated that he was lying in bed at the time. Claimant got out of bed, opened the door for Reynolds, and got back in bed. Reynolds threw a package on claimant’s dresser, and told claimant that he was going down to the comer for coffee, and would leave the package in claimant’s apartment until he got back. Reynolds then left the apartment. Claimant further testified that Reynolds later returned with another man, Anthony Johnson. Reynolds at that time asked claimant to give the package to Johnson, which claimant did. Johnson then passed money to claimant who in turn passed it to Reynolds. However, Reynolds refused to take the money, but, instead, told claimant to keep it for a while, and bring it over to Reynolds’ house later. Claimant testified that he did not know at the time what was in the package. Claimant was later arrested on the narcotics charge in January of 1959, and spent three or four days in jail before getting out on bond. He was returned to jail in April of 1959, and again was released on bond on May 29, 1959. In July of the same year he was re-incarcerated, tried, and convicted. He remained in prison until his release on April 6, 1961 upon reversal of the conviction as referred to herein-above.

Respondent contends through its witness, Anthony D. Johnson, that the facts, as testified to by claimant, are erroneous. Johnson stated that on September 29, 1958, he and an informer by the name of Reynolds proceeded to the Greenbriar Hotel located at 63rd and Greenwood Streets, Chicago, Illinois, where they were admitted to Room 316, and in the presence of one James Strong, claimant herein. Johnson testified that he negotiated with Strong for the purchase of a certain narcotic drug for which he paid the sum of $50.00. He stated that, to his knowledge neither he nor any other federal employee supplied claimant herein with the drugs in question, which were purchased by him. This information is related here only to show the dispute in the facts of the case as presented in the Court of Claims.

Claimant contends that proof of entrapment amounts to proof of innocence of the crime, in accordance with the requirements of Chapter 37, Sec. 439.8C.

Respondent contends that claimant has failed to sustain the burden of proof by a preponderance of the evidence, as required in this type of case. Respondent contends that claimant was not a fully creditable witness, inasmuch as the record discloses that, in addition to his conviction for the crime forming the subject matter of the claim in this Court, he had been previously guilty on two occasions of certain narcotic violations.

This Court will not be placed in the position of retrying the evidence in the original criminal trial. The issues involved herein have been enunciated time and time again in cases before this Court. Claimant had the burden of proving by a preponderance of the evidence that the time served in prison was unjust, that he did not commit the acts for which he was wrongfully imprisoned, and the amount of damages to which he would be entitled. Claimant has not proven his innocence of the acts or the fact of the crime. The Legislature, when it created Section 439.8C, of the Court of Claims Act, intended to create a humane manner by which a person completely innocent of the acts for which he was charged could seek redress in the form of money damages for the time that he served unjustly. It was not the intent of the lawmakers to open the pocketbooks of the State to known and acknowledged peddlers of dope because of a technical reversal of a conviction in the original criminal trial. (Dirkans vs. State of Illinois, No. 4904, Court of Claims; Tate vs. State of Illinois, No. 5100, Court of Claims).

Claimant in this cause of action has clearly failed to sustain his burden of proving that he was innocent of the fact of the crime, and the claim is, therefore, denied.


text:
    (No. 5014
    William Hoskins, A Minor, By his Father and Next Friend, Eddie Hoskins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1965.

    Edward I. Rosen, Attorney for Claimant.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, William Hoskins, by his father and next friend, seeks to recover from the State of Illinois the sum of $25,000.00 for personal injuries allegedly sustained as a result of respondent’s negligence, whereby claimant was severely and permanently injured.

William Hoskins, on June 20, 1960, was fifteen years of age, and an inmate of the Illinois State Training School for Boys, St. Charles, Illinois. On that particular date, he had been assigned to work in the cannery, which was part of the school, and was under the supervision of William Dawson, an employee of respondent.

On June 20, 1960, claimant was operating a vegetable washing machine, and at the end of the working day, while attempting to clean the machine in question, his left hand was caught in the chain and sprocket, which powered the washing barrel, causing severe injuries to claimant’s hand. Claimant received treatment at the institution hospital, and approximately four days later was taken to the Illinois Research Hospital in Chicago, Illinois, where he remained over night for additional treatment. It appears that he was disabled for approximately a month. Thereafter he returned to work at the cannery doing a similar type of task to that which he had been doing before the accident. Testimony reveals that claimant had an “L” shaped scar on the back of his left hand, approximately Va" to 1" wide and 4 inches in length, and suffers some stiffness of the hand on occasion.

Claimant’s action for recovery is based upon certain alleged acts of negligence on the part of respondent, more particularly set forth as follows:

(a) Negligently and carelessly failed to properly instruct claimant in the full proper usage of the washing machine;
(b) Negligently and carelessly faded through its employee to properly supervise and direct, or to supervise and direct at all the cleaning operation of said machine being performed by claimant;
(c) Negligently and carelessly, and with the specific knowledge and direction of its employee, permitted the cleaning of said washing machine while still in the operation, so as to hasten the cleaning operation and enable the employee and staff to leave.

Respondent does not dispute the facts related in claimant’s brief, nor does respondent offer any particular evidence to rebut the allegations on the part of claimant that it was negligent. The entire defense of respondent is based upon its contention that claimant has clearly not sustained his burden of being free of contributory negligence.

This Court finds that the issue in this cause can be simply stated as whether or not claimant has proven that the injuries he sustained were the direct and proximate result of a negligent act or omission on the part of respondent, and that claimant himself must be proven to be free from contributory negligence. Claimant alleges that William Hos-kins was a minor of the age of fifteen years at the time of the occurrence complained of, and was only chargeable with that degree of due care and caution properly to be expected from one of his age, intelligence, and experience. The law in Illinois is quite clear as to the accountability of children for contributory negligence. Our State follows the common law rule that a child under the age of seven years is conclusively presumed not to be responsible for his acts. (Moser vs. East St. Louis and I. W. Company, 325 Ill. App. 543, 546, 62 N.E. 2d 558, 560; Wolczek vs. Public Service Company, 342 Ill. 482, 493, 174 N.E. 577, 582.) The degree of care to be exercised by a minor over the age of seven years is that which a reasonably careful person of the same age, capacity, and experience would exercise under the same or similar circumstances. (Wolf vs. Budzyn, 305 Ill. App. 603, 605, 27 N.E. 2d 571, 572; Wolczek vs. Public Service Company, 342 Ill. 482, 497, 174 N.E. 577, 583.) Duties delegated or tasks assigned to a minor of tender age should be carefully guarded. A minors activities must be carefully planned and supervised in order to assure that his activities are commensurate with his ability to comprehend and absorb, and to protect himself from injury. Disregard for these precautions should not be treated lightly. However, some liberalities should be applied as the minor progresses toward adulthood, for we can assume that, through his environment and everyday experience, some knowledge has been gained. A young man at the age of fifteen has come to know fear, danger, hurt, and subsequent pain. Claimant, by reason of his association with other machine operators, and by the fact that he personally operated this machine and other machines on various occasions, must have gained certain skills and knowledge with relation thereto. During the six week period prior to the injury on June 20, 1960, claimant must have had the experience of seeing all of the machines turned off and on at various times, and the dangers of working on these machines while operating must have been present in his mind. Claimant admitted, during the taking of the deposition under oath, that he had forgotten to turn the machine off.

On the other hand, the facts, as presented by claimant, clearly indicate that at the time of the accident on June 20, 1960 the Illinois State Training School for Boys needed an adequate training and supervision program in regard to the operating mechanism of the machinery in use at the cannery. The State cannot escape its duty to an individual merely because he or she is an inmate of an institution. This Court has held on numerous occasions that the State must meet the same standards of care and safety as are required of private industry.

From the record in this cause, we find that claimant was injured while in the course of his employment, and as an inmate in the Illinois State Training School for Boys at St. Charles. We further find that the injury was sustained while claimant was operating a machine without proper and adequate supervision and training, and that, as a direct result of these negligent acts or omissions, an injury was sustained by claimant. To sustain an award, claimant must sustain the burden of proving that respondent was guilty of negligence, and that he, claimant, was free from contributory negligence. (Harold E. Moe vs. State of Illinois, 23 C.C.R. 14.) We further find that claimant has failed to sustain the burden of proving that he was free from contributory negligence. The evidence discloses that claimant was familiar with the machine, its method of operation, and the fact that it was to have been turned off before it was cleaned. Claimant admitted that he forgot to turn it off. The age of claimant was not that of a person totally unable to comprehend the dangers about him, as he did his daily task. The mere fact of his age of fifteen would not be sufficient to purge him of the duty imposed by law to be free of contributory negligence.

Petition of claimant is denied.


author: Perlin, C. J.

text:
    (No. 5037
    James Edward Helton, Claimant, vs. The Board of Trustees of Southern Illinois University, Respondent.

      Opinion filed November 9, 1965.

    R. W. Harris, Attorney for Claimant.
    C. Richard Gruny, Attorney for Respondent.
   Perlin, C. J.

Claimant, James Edward Helton, seeks recovery of $25,000.00 for injuries allegedly suffered on property used for a Southern Illinois University Camp for handicapped children.

Claimant contends that respondent failed to maintain the walkway leading to the Southern Illinois University Water Purification Plant at the Camp in a reasonable and suitable condition for pedestrian travel in that he fell on a rough, uneven and rocky portion of the walkway.

The testimony reveals that on the afternoon of July 9, 1960 claimant was fishing in a boat on Little Grassy Lake with George Twomey and his six year old son, Michael. Claimant was operating the boat when young Twomey complained of being thirsty. The father requested that the boat be turned into the Southern Illinois University Grassy Lake Camp site. The boat was landed near the shore, and one of the counselors who was patrolling pulled the boat to the shore fine. Twomey testified that he asked if they could stop to get a drink of water: “I told her my son was very, very thirsty. I asked if we could get him a drink of water. She agreed to let him have a drink of water.” The counselor then told Mr. Helton to “Come on and have a drink with everyone else.”

Helton testified that he knew that Southern Illinois University leased and controlled the camp site for handicapped children. With the counselor leading the way, Twomey and his son walked side by side, and Helton followed. Twomey testified he heard a noise as Helton fell. They had been walking on a smooth asphalt path, which was slightly uphill. As Helton stepped off the asphalt path, apparently onto a secondary path, consisting of loose gravel with some rocks, both of his feet flew out from under him, and he fell, breaking his ankle, for which injury he claims damage.

Donald K Cross, Assistant Co-ordinator for Southern Illinois University, testified that he was working with the water purification facility in the summer of 1960. He stated that the purpose of conducting the camp for handicapped children was mainly for therapy, and that the counselors are student employees being trained as counselors. He further testified that the camp is not open to the public, and that the instructions to the staff and water front personnel are that no one is allowed on the beach area. There are signs posted at all beaches with 3 feet by 1 foot signs saying “Unauthorized personnel keep off.” There was no drinking faucet or dipper at the water spigot of the filtration plant. Plant personnel would secure water by cupping their hand under it. No one was allowed at the plant, other than the personnel who operated it.

Claimant has already received $875.00 from respondent’s liability insurer in consideration of which claimant’s suit in the Circuit Court of Williamson County was dismissed, and claimant covenanted not to, sue respondent, but reserved the right to proceed under the terms of the law governing actions before the Court of Claims.

In this case, the only alleged tort-feasor involved is Southern Illinois University. A covenant not to sue, while technically not a release, may be pleaded in bar of the cause of action to which it relates where it is made with a sole tort-feasor. (45 Am. Jur., Release, Sec. 3, 53 A.L.R. 1463.) Therefore, having covenanted not to sue respondent, its officers, agents or employees, or its liability insurer on account of the instant claim, the Court of Claims must question the propriety of permitting a claim in violation of such covenant.

Without regard to this question, however, it is the Court’s opinion in the instant case that liability has not been factually established.

An owner or occupant of lands who directly or impliedly invites others to enter for some purpose of interest or advantage to him owes to such persons a duty to use ordinary care to have his premises in a reasonably safe condition, but a permissive or bare licensee upon the property of another cannot recover for injuries sustained from defects, obstacles or pitfalls upon the premises except where such defects were caused by the active negligence of the owner or occupant. (38 Am. Jur., Negligence, Secs. 96, 105.) Claimant’s contention that respondent was under a duty to exercise reasonable care towards him is without merit, since he was at most a mere licensee.

An invitee is a person who is invited or permitted to enter or remain on land for a purpose of the occupier, while a licensee is a person who is privileged to enter upon the land by virtue of the possessors consent. (Prosser, Torts, Secs. 77, 78. Emphasis supplied.) This Court in the case of Edith Burris vs. State of Illinois, 24 C.C.R 282, stated: “In the case of an invitee proof of ordinary negligence is necessary. In the case of a licensee, the burden of proof is upon claimant to prove respondent guilty of wilful and wanton misconduct.”

The facts clearly demonstrate that claimant’s status could not be that of an invitee, since he was on the property solely for the benefit of himself and the members of his party, and not for the benefit or purpose of Southern Illinois University, which had in fact posted signs to discourage “unauthorized personnel” from approaching the camp. Nowhere has claimant alleged that respondent set a trap for him or exposed him to danger recklessly or wantonly, nor is there any evidence of such conduct on the part of respondent. Therefore, claimant, as a licensee, was required to take the premises as he found them. (Dent vs. Great Atlantic and Pacific Tea Co., 4 Ill. App. 2d 500,124 N.E. 2d 360 (1955).)

For the foregoing reasons, claimant is not entitled to recovery, and an award is hereby denied.