text:
    (No. 5586
    Doyle McRaven, Administrator of the Estate of Louis Wayne McRaven, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 14, 1972.

    Feirich, Feirich and Green, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

Claimant, as administrator of the estate of Louis Wayne McRaven, deceased, brings this action for damages for the wrongful death of the decedent and alleges that his death was caused by the negligent operation of an Illinois National Guard truck when it struck an automobile which decedent was driving.

Claimant contends that the driver of the National Guard truck was an agent of the State of Illinois at the time of the accident. This, of course, is an essential allegation to establish jurisdiction in this Court under §8(d) of the “Court of Claims Act”. It is incumbent upon us to determine the question of jurisdiction before considering any other issue.

There is no controversy as to the facts in this matter, and we briefly restate them as follows. The driver of the National Guard truck involved in the accident was Private Kenneth E. Keleher, a member of the Illinois Army National Guard assigned to the 3rd Rifle Platoon, Company A, 2nd Battalion, 129th Infantry stationed at Freeport, Illinois. The headquarters of the battalion was located at Sycamore, Illinois. On June 10 and 11,1967, Private Kenneth E. Keleher was in attendance at the regularly scheduled multiple unit training assemblies of his Illinois Army National Guard unit. As a part of his duties in connection with these training assemblies, Private Keleher was assigned to operate government vehicle 2% ton truck M-135, USA 41108473. This was the truck involved in the accident.

On June 10,1967, Private Keleher was directed to pick up troops of Company A, 2nd Battalion, 129th Infantry at the Armory in Elgin, Illinois, and take them to the Joliet training area. Upon completion of this mission, he was then sent to the Joliet Armory to bring a 1M ton water trailer back to the Joliet training area. Private Keleher remained in the Battalion Motor Pool until 2:30 p.m. At that time he was dispatched to a Standard service station on Illinois Route 6 and U.S. Route 66 for the purpose of obtaining gasoline. Upon return from the service station, Private Keleher completed delivery of certain items of baggage to Company A in the Joliet training area. Apparently having missed the regular evening meal served by his unit due to his absence on assigned duties, Private Keleher returned to the Standard service station, where he had earlier bought gasoline, to eat at the restaurant there. He remained at the restaurant from 7:30 p.m. until 8:45 p.m. and then returned to the Joliet training area.

Some time after returning to the training area, Private Keleher picked up a Private Robert C. Diehl, and the two of them left the training area in the government vehicle which Private Keleher had been using earlier that day. They drove to the Four Palms Tavem located on Route 53, arriving there at approximately 10:00 p.m. About 11:30 p.m. they were joined at the tavern by a Sergeant Gary E. Dietmeier and a Specialist Four Gary L. Derrer. At approximately 2:45 a.m. on June 11, 1967, these four men left the parking lot of the Four Palms Tavern in the same government vehicle, with Private Keleher driving. The fatal accident occurred a moment later.

At this time claimant’s decedent was driving a 1957 Chevrolet in a northerly direction on Route 53 approaching the point of impact which was 3% miles south of Joliet and adjacent to the Joliet arsenal area. At this point Route 53 is a four lane divided highway with no traffic signals. At the time of the accident, the weather was clear and dry. The truck driven by Private Keleher left the parking lot and turned south into the northbound lanes. The left front of decedent’s car and the left front of the government truck collided. Claimant’s decedent was thrown from his car into the path of a northbound pick-up truck driven by Brian J. Hrpcha. Claimant’s decedent was killed instantly.

The record establishes the fact that the National Guard member, Private Keleher, was engaged, at the time of this fatal accident, in inactive duty training under 32 U.S .C. §502. That section reads as follows:

§ 502. Required drills and field exercises

(a) Under regulations to be prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, each company, battery, squadron, and detachment of the National Guard, unless excused by the Secretary concerned, shall—

(1) assemble for drill and instruction, including indoor target practice, at least 48 times each year; and

(2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year.

(b) An assembly for drill and instruction may consist of a single ordered formation of a company, battery, squadron, or detachment, or, when authorized by the Secretary concerned, a series of ordered formations of parts of those organizations. However, to have a series of formations credited as an assembly for drill and instruction, all parts of the unit must be included in the series within seven consecutive days of the same calendar month.

(c) The total attendance at the series of formations constituting an assembly shall be counted as the attendance at that assembly for the required period. No member may be counted more than once or receive credit for more than one required period of attendance, regardless of the number of formations that he attends during the series constituting the assembly for the required period.

(d) No organization may receive credit for an assembly for drill or indoor target practice unless—

(1) the number of members present equals or exceeds the minimum number prescribed by- the President;

(2) the period of military duty or instruction for which a member is credited is at least one and one-half hours; and

(3) the training is of the type prescribed by the Secretary concerned.

(e) An appropriately rated member of the National Guard who performs an aerial flight under competent orders may receive credit for attending drill for the purposes of this section, if the flight prevented him from attending a regularly scheduled drill. Aug. 10, 1956, c. 1041, 70A Stat. 610.

This Court has consistently taken the position that whenever the National Guard is either called into active duty under Title 10, §263, or into active training under the above quoted §502, its members are on a “federal mission” and not performing a state function.

The National Guard is a reserve component of the Armed Forces of the United States (10 U.S.C. §261). It is clear from a reading of Titles 10 and 32 of the U.S. Code that the mission of the National Guard, both on active duty (10 U.S.C. §263) and inactive training (10 U.S.C. §502, 503) is primarily a federal mission.

We commented at length on the employment status of the members of the Illinois National Guard in an Order entered April 27,1971, dismissing the complaint in Speer vs. State, Court of Claims No. 5903. Said order, awaiting publication, was attached to respondent’s brief with copy to the claimant.

In the Speer order we acknowledged that there are circumstances under which the National Guard may be called into service by the Governor when necessary for the performance of a state function. That was not the situation in the case before us.

Since the National Guard unit to which Private Keleher was attached was not engaged in the performance of a state function or in state service at the time of the fatal accident, he was not an agent nor an employee of the State of Illinois. Hence the state would not be responsible for his acts and claimant’s cause of action is not within the jurisdiction of this Court.

We have not overlooked claimant’s contention that proof of ownership of a motor vehicle raises the presumption that the person operating the motor vehicle was the agent of the owner and acting within the scope of his employment. However, the record indicates that the state did not own the National Guard truck involved in the accident. It bore serial number USA 41108473, and was a vehicle owned by the United States. Title 32, U.S.C. §710 states in part:

“All military property issued by the United States to the National Guard remains the property of the United States.”***

It is thus apparent that any presumption of agency arising out of ownership of the government vehicle would further tend to establish the fact that Private Keleher was an agent of the United States government and not an agent of the State of Illinois.

Obviously, the further question as to whether Private Keleher was acting within the scope of his employment at the time of the accident is not an issue properly before this Court since he was not then employed by the respondent.

We conclude, therefore, that the alleged tort feasor was not an agent of the State of Illinois at the time of the accident and that this claim against the respondent must be denied.

The claim is denied.


source: Caselaw Access Project

author: Perlin, C.J.

license: Public Domain

text:
    (No. 6571
    Mason-Barron Laboratories, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Mason-Barron Laboratories, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6577
    L. E. Mandernack, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Dr. L. E. Mandernack, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6579
    Gedas Grinis, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Dr. Gedas Grinis, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6589
    Fred N. Smith, M.D., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed July 14, 1972.

    Dr. Fred N. Smith, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6597
    Ruth Feather Allison, Executrix of Raymond Feather, Deceased, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed July 14, 1972.

    Arnold and Kadjan, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6602
    Xerox Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 14, 1972.

    Xerox Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6610
    Jefferson Stationers, Inc., Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed July 14, 1972.

    Jefferson Stationers, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6617
    Piatt County Department of Mental Health, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Piatt County Department of Mental Health, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6618
    Union Electric Company, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Union Electric Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


author: Berlin, C.J.

text:
    (No. 6622
    Hazel-Wilson Hotel Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Samuel A. Schwartz, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6624
    Wright’s Moving Corporation, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed July 14, 1972.

    Wright’s Moving Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6627
    Fruehauf Corporation, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 14, 1972.

    Cassidy and Cassidy, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6630
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

      A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6632
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6633
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6662
    The Nash Engineering Company, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed July 14, 1972.

    The Nash Engineering Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6666
    Northern Propane Gas Company, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed July 14, 1972.

    Northern Propane Gas Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6668
    Thelma L. Beall, Executor of the Estate of Lawrence Beall, Deceased, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed July 14, 1972.

    Thomson, Thomson, Mirza and Zanoni, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6694
    Fidelity File Box, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 14, 1972.

    Fidelity File Box, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6709
    Charles McCorkle, Jr., Claimant, vs. State of Illinois, Attorney General’s Office, Respondent.

      Opinion filed July 14, 1972.

    Charles McCorkle, Jr., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6635
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6638
    Decatur Mental Health Center, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Decatur Mental Health Center, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6651
    Stewart Olson Implement Company, Inc., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 14, 1972.

    Stewart Olson Implement Company, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6654
    Glick Medical and Surgical Supply Company, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Glick Medical and Surgical Supply Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6655
    Holiday Inn of Edwardsville, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 14, 1972.

    Holiday Inn of Edwardsville, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6659
    Murphy and Miller, Inc., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 14, 1972.

    Murphy and Miller, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6713
    Passavant Memorial Area Hospital Association, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed July 14, 1972.

    Passavant Memorial Area Hospital Association, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


author: Holderman, J.

text:
    (No. 5712
    Hazel Thode, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 27, 1972.

    Drach, Terrell and Deffenbaugh, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant is a 74 year old lady who was injured on October 7, 1969, while visiting the Lincoln Home in Springfield.

She alleges that on October 7,1969, and while visiting the Lincoln Home and after going through the house, she was directed to the outbuildings in the backyard. In order to get to the backyard, it was necessary to travel upon a boardwalk and while upon this boardwalk, she slipped and fell fracturing her hip.

At the time of the accident, claimant stated that she was wearing an old pair of shoes with inch high heels composed of very hard rubber.

Her statements are conflicting as to the condition of the boardwalk. In one instance, she stated that the boardwalk was wet and in another that it must have been like ice.

In any event, she sustained severe injuries, was treated originally at St. John’s Hospital in Springfield and then was flown to Denver, Colorado, which was her home, in a private plane. She underwent surgery at the Denver hospital and there a new ball socket was placed in her hip.

She had a part-time business of raising money for various organizations. In 1967, she earned $1,044.65, in 1968, she made $1,082.62 and in 1969, she earned $758.25. She claims that the accident affected her ability to put on sales and that before the accident, she accepted three assignments per week but since the accident, she has been able to accept only one assignment.

She incurred very substantial medical and hospital bills as the result of said injury.

The report of the Department of Conservation, who made an investigation after the accident, was that it had rained the night of October 6th and on October 7th, the time of the accident, the walk itself was still wet. The evidence was that there was not any loose boards or protruding nails and the walk was comparatively new. There were no signs of any kind or character relative to this walk and there is a complete absence of any negligence on the part of the respondent, with the only evidence being that there was a wet sidewalk.

Before claimant can recover damages from the State, it must be proved that she was in the exercise of due care and caution for her own safety, that the State was negligent, and such negligence was the proximate cause of the accident. McNary vs. State of Illinois, 22 C.C.R., 328-334, Bloom vs. State of Illinois, 22 C.C.R., 582-585; Week vs. State of Illinois, 4719.

In this case, it does not appear that there was any negligence on the part of the State and certainly the mere fact that a sidewalk was wet from rain does not prove any negligence. As a matter of fact, the only negligence claimed by claimant is that the tourer of the premises was upon a wooden walkway which was open and unprotected from the weather and was without railings and protective devices.

We do not believe that, in itself, constitutes such an act of negligence on the part of the State as to allow recovery by the claimant.

This Court has repeatedly held that in State Parks, etc., such as the Lincoln Home, a member of the general public who is present is an invitee and the State has the duty to exercise ordinary care to protect such invitee from harm. Vol. 25 C.C.R. 353. It is also the law of the State of Illinois that the State is not an insurer of the safety of those who make use of park facilities but it must use reasonable care in the maintenance of its park facilities and supervise the use thereof by the public. Vol. 21 C.C.R. 467.

This claim is therefore denied.


text:
    (No. 5976
    Caution Lites, Inc., Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed July 27, 1972.

    Burchmore, Good and Bobinette, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6432
    Berz Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 27, 1972.

    Berz Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6456
    Jack H. Querciagrossa, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 27, 1972.

    Jack H. Querciagrossa, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6490
    Zion Nursing Home, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 27, 1972.

    Zion Nursing Home, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6499
    Union Oil Company of California, Claimant, vs. State of Illinois, Various Agencies, Respondent.

      Opinion filed July 27, 1972.

    Union Oil Company of California, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6596
    H. M. Lees, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 27, 1972.

      Dr. H. M. Lees, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6605
    Scott Mac Eachron, Claimant, vs. State of Illinois, Department of Local Government Affairs, Respondent.

      Opinion filed July 27, 1972.

    Scott Mac Eachron, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6607
    Sheldon J. Skodki, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 27, 1972.

    Dr. Sheldon J. Skodki, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6631
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 27, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6636
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 27, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6657
    Northern Illinois Gas Company, Claimant, vs. State of Illinois, Division of Waterways, Respondent.

      Opinion filed July 27, 1972.

    Northern Illinois Gas Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6701
    L. P. Thermogas Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 27, 1972.

    L. P. Thermogas Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6712
    Streeter Amet, Division of Mangood Corporation, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 27, 1972.

    Streeter Amet, Division of Mangood Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    No. 6714
    Coye C. Mason, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 27, 1972.

    Dr. Coye C. Mason, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6744
    The NCR Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 27, 1972.

    The NCR Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6792
    Donald C. Rikli, Claimant, vs. State of Illinois, Fair Employment Practices Commission, Respondent.

      Opinion filed July 27, 1972.

    Donald C. Rikli, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5855
    Garfield Park Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Garfield Park Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5856
    Garfield Park Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Garfield Park Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5857
    Garfield Park Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Garfield Park Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent
   Perlin, C.J.


text:
    (No. 5858
    Garfield Park Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Garfield Park Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5859
    Garfield Park Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Garfield Park Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney, for Respondent.
   Perlin, C.J.


text:
    (No. 5861
    Garfield Park Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Garfield Park Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney, for Respondent.
   Perlin, C.J.


text:
    (No. 5862
    Garfield Park Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Garfield Park Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5865
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 5866
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney, for Respondent.
   Perlin, C.J.


text:
    (No. 5867
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney, for Respondent.
   Perlin, C.J.


text:
    (No. 5870
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney, for Respondent.
   Perlin, C.J.


text:
    (No. 5872
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6333
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6334
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 3, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5451
    Selwyn Zun, Administrator of the Estate of James Corrigan, Jr., Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 4, 1972.

    Mullin, Zun and Devine, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Zeamore Ader, and Etta Cole, Assistant Attorneys General, for Respondent.
   Perlin, C.J.

Claimant seeks recovery of $25,000 as Administrator of the Estate of James Corrigan, Jr., deceased, who committed suicide by jumping from an elevated train platform in front of a passing train while in the company of two attendants from the Illinois State Psychiatric Hospital.

The evidence reveals that on November 17, 1965, James Corrigan, Jr., was admitted to the Illinois State Psychiatric Hospital upon order of the Circuit Court of Cook County, Illinois. At the time of admission, his condition was diagnosed as “schizophrenic reaction, acute undifferentiated type.”

The respondent’s hospital records pertaining to Corrigan were introduced into evidence by stipulation. The following is adduced from the hospital records:

The patient was in the hospital for sixty-three days and was cooperative with the staff. His father was an alcoholic who died in jail and his mother committed suicide in 1961 by jumping from a 15-story window while the patient was visiting her. Since his mother’s death, the patient began to drink heavily. He married in 1963 and had one child and at the time of hospitalization his wife was four months pregnant.

On December 30, 1965, the records show that the patient was permitted to work away from the hospital on a part-time basis. On January 6,1966, the patient’s wife called the Supervisor of Psychiatric Social Work at the hospital and expressed concern because of the patient’s very overt depression. For the first time he openly expressed suicidal thoughts because of his fear that he would spend “the rest of my life in mental hospitals” and also, for the first time spoke of “getting a gun and doing away with the family.”

Entries in the hospital records indicate that the patient was severely depressed on January 9, 1966. Suicidal precautions were entered as physician orders on January 11, 1966, and were removed on January 17,1966. The discharge summary states:

“After one week his depression seemed to have completely lifted. Plans were made that he would go back to work on a part time basis in the near future. Part of this plan was to provide him with enough structure that he would be able to function. Two days later and before the plan was put into effect, the patient went on a field trip with other patients and staff members. While they were waiting on the platform at the elevated train station, the patient leaped in front of the train when it pulled into the station and he was instantly killed.”

Claimant contends that the Illinois State Psychiatric Hospital failed to exercise reasonable watchfulness of the decedent and that a man whose expressed suicidal thoughts caused suicidal precautions to be imposed should not be allowed on an elevated platform within two days of the lifting of these suicidal precautions.

Dr. Marvin Ziporyn, a practicing psychiatrist called as a witness for the claimant, testified in answer to a hypothetical question, that the termination of the suicidal precautions were premature and should have been continued for another ten days to two weeks to allow the staff to observe whether the transition away from suicidal tendencies had in fact occurred. On cross examination he testified that this was a question of clinical judgment as opposed to negligence in treating a patient and that returning such a patient to a normal environment within a reasonable time is conducive to good mental therapy.

Dr. Jewett Goldsmith, a psychiatrist called as a witness for respondent, testified that he is Chief of the Northwestern University Family Service at the Illinois State Psychiatric Institute; that he is in charge of thirty-five to forty patients there; that James Corrigan was one of his patients and was assigned to and treated by a resident doctor, Dr. Ingeborg Fasse, who consulted with Dr. Goldsmith. Dr. Goldsmith said that the patient had been given a work pass on December 30, 1965, which was rescinded on January 11, 1966, after Corrigan had expressed suicidal anxiety precautions on January 10,1966. Suicidal precautions mean that a patient cannot leave a ward without supervision and must be checked every fifteen minutes. Dr. Goldsmith stated that there is no particular timetable when suicidal precautions should be lifted and in Corrigan’s case they were lifted on January 17, based “on a number of days worth of reports from the nursing personnel that he no longer appeared depressed, that he was talking more hopefully and on the basis of Dr. Fasse’s observations and interview, on the basis of his discussing future plans with a certain amount of insight into his problems; and with constructive ideas about how he would go about conducting his life in the future and conducting his work and so forth in the face of total absence of any indication that suicidal thinking was still going on.”

Dr. Goldsmith further testified that the patient had made no overt suicidal attempts at the institution nor were they aware of any history of making suicidal attempts. The field trip was a therapeutic procedure in Dr. Goldsmith’s opinion and was considered in the patient’s best interest as part of his over-all treatment plan. Once the patient was “seen as being no longer suicidal and his depression was lifted ... a rapid return to work pass was seen as being in the offing.”

Dr. Goldsmith disagreed with Dr. Ziporn on a time factor in lifting suicidal precautions and stated that even after observing a patient for two weeks, “he still might, on the first ground pass, commit suicide.”

In order to recover, by a preponderance of the evidence, claimant must prove that respondent was negligent in its duty towards the decedent and that such negligence was the proximate cause, of decedent’s death.

Respondent contends that it exercised reasonable care in the diagnosis, treatment, and management of the decedent; that it used reasonable care in prescribing a plan for rehabilitation of the patient which included the field trip; that the decisions of respondent’s physicians were made on medical judgments in the exercise of reasonable care; and that permitting the decedent to take the field trip was not the proximate cause of his death.

In the case of Hanvey vs. State of Illinois, 22 C.C.R. 513, Patiricia Hanvey was a patient at the Kankakee State Hospital and had a history of suicide attempts and was classified “schizophrenic reaction, acute undifferentiated type,” as in the instant case. Shortly after she was allowed ground privileges, she committed suicide by drowning hers elf in the Kankakee River which bordered the hospital.

In denying recovery, the Court conceded that the standard of care is identical in private and public institutions, but held that the State is not an insurer as follows:

“The only way that the state could protect all mental patients, regardless of the progress of improvement they had shown, would be not to grant any ground privileges, or any privileges whatsoever... not to permit.any patient of this kind, or any other type privileges, because there is always a possibility that any mental patient might find some means to destroy himself; and, to keep all patients under constant surveillance. This, in our opinion, would certainly be a detrimental factor, and would impede recovery, as it is unquestionably a part of the therapy treatment as mental patients show signs of improvement and self-reliance to grant them privileges preparatory to restoring them to a natural and normal existence____"(at p. 519)

In the case of Hebel vs. Hinsdale Sanitarium and Hospital, 2 Ill. App. 2d 527, a mental patient was given shock treatment, but not provided sufficient security. She left the hospital and was killed by a railroad train. In denying her husband recovery against the hospital, the Court stated:

“If the negligence does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury.”

In the opinion of the Court, the claimant has failed in its burden of proof. There is no showing that respondent failed to exercise reasonable care nor that the tragedy was the natural and probable consequence of their care or lack of care.

Recovery is therefore denied.


text:
    (No. 5491
    Arthur A. Bleau, and Sophie J. Bleau, his wife, partners, d/b/a Airway Trailer Park and Sales, a partnership, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 17, 1972.

      Petition of Respondent for Rehearing denied August 10, 1972.

    Peterson, Lowry, Rall, Barber and Ross, Attorney for Claimants.
    William J. Scott, Attorney General; Etta Cole and Saul R. Wexler, Assistant Attorneys General, for Respondent.
   Holderman, J.

Claimants, Arthur A. Bleau and Sophie J. Bleau, d/b/a Airway Trailer Park & Sales, a partnership, seek recovery for damages to their trailer park at Oak Lawn, Illinois.

The facts, briefly, are as follows:

On April 21, 1967, a tornado struck claimants’ trailer park located at 9001 South Cicero Avenue, Oak Lawn, Illinois. This tornado caused considerable loss of life and damage to property, including a portion of the trailer park of the claimants.

The Illinois National Guard was called to the scene by the Governor of the State of Illinois to assist the local authorities in caring for the injured, recovering the dead, and in a general cleanup operation.

The National Guard responded promptly; moved in its personnel, trucks and other machinery; carried on a search for dead and injured persons; and also was instrumental in recovering many truckloads of personal property of the inhabitants of the area.

Claimants content that, in its cleanup operation, the Illinois National Guard negligently and improperly scooped up and removed various concrete slabs on which claimants set trailers and used as walkways, as well as water and sewer pipes and other underground utilities. The concrete slabs were four inches to five inches thick and set flush with the ground. The water and other underground utilities in some instances had risers extending above ground.

Claimants’ Exhibit 1, a photograph taken after the tornado struck but before cleanup operations, shows the condition of the premises with wrecked trailers, debris, and a general chaotic condition. It also shows a number of the slabs in question, which appear to be at ground level and apparently not affected by the storm.

Claimants’ Exhibit No. 2 is a picture taken after the cleanup operations were completed and shows the premises very clean, with all slabs removed except those in the lower left hand corner. There is a complete absence of other slabs or walks.

Respondent contends that the National Guard was not negligent in the operation of its bulldozers and did not remove the slabs nor cause the alleged damage. Respondent infers that the private contractors, who were also engaged in bulldozing the area, were responsible for the said damages.

This case turns on a simple question of fact, namely, whether or not the bulldozers of the National Guard did remove the concrete slabs and damage the utilities.

Twenty witnesses testified at the hearing, ten on behalf of the claimants, and ten on behalf of the respondent. While some of the claimants’ witnesses were connected with the claimants in various ways, their testimony was consistent in placing the Illinois National Guard on the scene and in seeing no private contractors in the park. Respondent’s witnesses testified as to various procedures in their operation including the height at which they had set their bulldozer blades.

The members of the National Guard also testified to the fact that there was equipment of private contractors operating in the area and this is borne out by the picture of the bulldozers in petitioners’ Exhibit 1 which shows that one bulldozer was in the area at a time before the arrival of the Illinois National Guard.

Preponderance of the evidence indicates that the Illinois National Guard did the greater portion of the bulldozing operation at the trailer park.

That there was removal of many of the slabs on which the trailers were set is evidenced by Exhibit 2 which shows the area after the National Guard had finished their operation, and it discloses that most of the slabs were removed.

Claimants expended the sum of $35,139.02 to put their trailer park back in operation and introduced various bills, the total of which aggregated the above amount.

Some of the bills were for the replacement of concrete patios, replacement of black dirt fill, replacement of the sewage system, replacement of underground wiring, replacement of mobile home valves, piping and accessories, replacement of hardware utility connections, replacement of lumber support of underground sewers and labor costs in repairing damages.

Claimants also made a claim for loss of rental of the trailers in the amount of $13,870.11.

The Illinois National Guard, having voluntarily undertaken to engage in a rescue and cleanup operation on the claimants’ property, was under a duty to exercise ordinary care while engaged in said operation so as not to injure or destroy the claimants’ property.

One of the closest cases in point is the case of the Village of Lake Villa vs. State of Illinois, Volume 22, Court of Claim Reports, Page 4. In this case the State hired a private contractor to use a bulldozer in cleaning the highways. The bulldozer, being used for a snow removal job, struck and broke a fire hydrant of the Village. The State was held responsible by reason of the negligent operation causing the damage.

Applying the same rules to this case, it is apparent that the National Guard was negligent in certain acts which caused some of the alleged damage.

In the case of Walter N. Clark vs. State of Illinois, 22 C.C.R. 173, where the damage was caused by an Illinois National Guard vehicle, which was not being properly operated, and there being no contributory negligence on the part of the claimant, the State was held liable.

The Reports are replete with cases holding that the negligence of the Illinois National Guard in the operation of its vehicles and equipment, where there was no contributory negligence on the part of the claimant, results in an award to the claimant.

With respect to the amount of loss suffered by the claimants for the alleged loss of rental for the trailers, we cannot agree with the position of the claimants. The damage resulting in the destruction of the trailers was that of the tornado and not of the Illinois National Guard. Regardless of any acts of the Illinois National Guard, this damage had already occurred before their arrival, and new trailers would have had to be erected before any rentals could accrue.

If there were any delay in the reconstruction and replacement of these trailers caused by any acts of the National Guard, we believe it was more than off-set by the cost of the cleanup operation performed gratuitously by the Illinois National Guard. Therefore, any claim for loss of rentals is hereby denied.

We believe that the claimants have proved by a preponderance of the evidence submitted that they sustained damages in the amount of $15,000.00.

We, therefore, make an award to the claimants in the amount of $15,000.00.


text:
    (No. 5873
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 10, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6019
    Garfield Park Storage Company, A Corporation, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 10, 1972.

    Warren Krinsky, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6429
    Phillips Petroleum Company, Claimant, vs. State of Illinois, Various Agencies, Respondent.

      Opinion filed August 10, 1972.

    Phillips Petroleum Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6675
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6676
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6715
    Mason/Barron Laboratories, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    Mason-Barron Laboratories, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6735
    Gethner Drugs, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    Gethner Drugs, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6739
    Virginia Metal Products, Division of Gray Manufacturing Company, Claimant, vs. State of Illinois, Governor’s Office of Human Resources, Respondent.

      Opinion filed August 10, 1972.

    Kirkland and Ellis, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6742
    Mason-Barron Laboratories, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    Mason-Barron Laboratories, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6745
    Mason-Barron Laboratories, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    Mason-Barron Laboratories, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6748
    Stromberg Datagraphix, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 10, 1972.

    Stromberg Datagraphix, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6766
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6767
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6771
    Isadore Spinka, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    Dr. Isadore Spinka, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6781
    Norm A. Hagman, M.D., S.C., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 10, 1972.

    Dr. Norm A. Hagman, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6293
    Union Linen Supply Company, Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed August 17, 1972.

    Union Linen Supply Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6528
    Approved Home, Inc., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 17, 1972.

    Kreger and Karton, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6575
    Winnebago County Mental Health Clinic,Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 17, 1972.

      Winnebago County Mental Health Clinic, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6775
    Xerox Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 17, 1972.

    William P. Baumler, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6578
    Illinois Children’s Home and Aid Society, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 5, 1972.

    Kirkland and Ellis, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6620
    Central Office Equipment Company, Claimant, vs. State of Illinois, Department of Public Instruction, Respondent.

      Opinion filed September 5, 1972.

    Drach, Terrell and Deffenbaugh, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6672
    Joseph J. Duffy Co., A Corporation, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed September 5, 1972.

    W. L. Lamey, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6684
    G. E. Irwin, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 5, 1972.

    Dr. G. E. Irwin, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6693
    Honeywell, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 5, 1972.

    Honeywell, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6707
    St. Joseph Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 5, 1972.

    St. Joseph Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6719
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed September 5, 1972.

      Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6788
    Standard Oil Division of American Oil Company, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 5, 1972.

    Standard Oil Division of American Oil Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6789
    3M Business Products Sales, Inc., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed September 5, 1972.

    3M Business Products Sales, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6796
    Hale-Prietsch Services, Inc., Claimant, vs. State of Illinois, Illinois Bureau of Investigation, Respondent.

      Opinion filed September 5, 1972.

    Hale-Prietsch Services, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6656
    A. R. Brownlie, Jr., M.D., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed September 7, 1972.

    Dr. A. R. Brownlie, Jr., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6730
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed September 7, 1972.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6758
    Data Products Corporation, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed September 7, 1972.

    Data Products Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6774
    Acme Visible Records, Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed September 7, 1972.

    Acme Visible Records, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6785
    Standard Oil Division of American Oil Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed September 7, 1972.

      Standard Oil Division of American Oil Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6020
    Licata Moving and Storage Company, d/b/a Addison Van Lines, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed September 8, 1972.

    Warren Krinsky, Attorney for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney, for Respondent.
   Perlin, C.J.


text:
    (No. 6278
    Cargill, Incorporated, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed September 8, 1972.

    Cargill, Incorporated, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6545
    Lincoln Tower Center, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 8, 1972.

    Lincoln Tower Center, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6566
    Licata Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed September 8, 1972.

    Licata Moving and Storage Company, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6454
    Roger Stevens, J. Wilbur Campbell, Eleanor L. Barnal, William D. Schafer and William Stephen Bray, Claimants, vs. State of Illinois, Jersey County Educational Service Region, Respondent.

      Opinion filed September 11, 1972.

    O. A. Wilson, Jr., Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5631
    Clyde Dial Construction, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 14, 1972.

      Petition of Claimant for Rehearing denied September 18, 1972.

    Downing, Smith, Jorgensen and Uhl, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Complaint alleges that on the 2nd day of September, 1968, claimant, Clyde Dial Construction, Inc., contractor, was doing work at the Lincoln State School.

Complaint alleges that a 1951 Chevrolet 1M ton flat bed truck, which was used as a compressor truck, was parked upon the grounds of the Lincoln State School where the work was being done.

Complaint further states that on the 2nd day of September, 1968, during the night, the truck was broken into, gasoline was poured on the cab of the truck and set afire, resulting in damages in the amount of $735.50.

Complaint alleges that one Brad Davis, an inmate at the Lincoln State School, was responsible for breaking into the cab of the truck and setting the fire.

Brad Davis, an eighteen year old inmate of Lincoln State School, testified that he was at the school in September, 1968, and he had been there since 1965. He testified that he had burned the truck of the claimant after he had gotten out of the building. He further testified that he had used gasoline in burning the truck, which gasoline he had obtained from a tank near a coal pile and used matches which he had found in the glove compartment of the truck.

Davis further stated that he had attempted to break into the truck the night before but only shattered the glass.

Another witness testified on behalf of the claimant that this truck was located near the power house and that it was constantly used on the project. He also testified that on the day before the fire, he had noticed the left vent glass in the cab had been shattered. This supported the statement originally given by Brad Davis that he had shattered the glass earlier, before the fire had been set.

The State did not introduce any evidence.

There were not any allegations of negligence on the part of the State in the Complaint and there is no record of prior escapes or absences by Brad Davis.

The petitioner relies on those cases previously decided by the Court of Claims, such as U.S. Fidelity and Guaranty Co. vs. State of Illinois, 23 C.C.R. 188 (1960).

This line of cases is to the effect that if the claimant makes a prima facia case and the respondent offers no evidence as to the circumstances surrounding the facts, it will be assumed that the claimant has sustained the burden of proof.

There is not any evidence in the record to prove that the State knew, or should have known, of any inclination on the part of the inmate, Brad Davis, to engage in the activity which resulted in the damage to the claimant.

Further, there is no allegation of any negligence on the part of the State nor is there any proof of any negligence on the part of the State.

Mere proof that the student did commit the act, coupled with the broken window which indicated an attempt to get into the truck the day before, is not sufficient to put the respondent on notice. The Court therefore holds that the claimant failed to sustain its burden of proof and failed to establish a prima facie case of negligence.

As stated before, the original Complaint did not contain any allegation of negligence although claimant, in its Brief, cited five acts of negligence and it is impossible to determine what theory the claimant proceeded on at the Hearing, whether upon the ordinary negligence theory or the escaped inmate theory. It was not until the Briefs were read that the theory the claimant was proceeding on became clear or known to the respondent, who answered the belated allegations of acts of negligence in its Brief.

In our opinion, the contentions made by respondent in these briefs are correct.

In passing, it is worthwhile to note that the Hearings were held at the Lincoln State School and the records of Brad Davis were available to both parties.

It is the opinion of the Court that claimant has not proved by a preponderance of the evidence the elements necessary to recover and an award is therefore denied.


text:
    (No. 6150
    Bertram and Mavara Mims, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1972.

    Bertram and Mavara Mims, Claimants, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

THIS COURT FINDS that this claim arises by reason of a misunderstanding concerning insurance coverage.

IT IS HEREBY ORDERED that the sum of $316.50 be awarded to claimant in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 6526
    Mason & Meents Construction Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed September 19, 1972.

    Mason & Meents Construction Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6576
    Central YMCA High School, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 19, 1972.

    Central YMCA High School, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6658
    Charles H. Mahone, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 19, 1972.

    Charles H. Mahone, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6663
    Paul A. Hauck, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed September 19, 1972.

    Paul A. Hauck, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6711
    Marian Haddad, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed September 19, 1972.

    Marian Haddad, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6734
    Gerald McDaniel, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed September 19, 1972.

    Gerald McDaniel, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6824
    Robeson’s Department Store, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 19, 1972.

    Robeson’s Department Store, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6825
    Da-Com Corporation, Claimant, vs. State of Illinois, Department of Public Health, Respondent.

      Opinion filed September 19, 1972.

    Da-Com Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6478
    The Perkins & Will Partnership, An Illinois Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 22, 1972.

    William J. Hurley, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6529
    Approved Home, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 11, 1972.

    Kreger and Karton, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6613
    Little Company of Mary Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 22, 1972.

    Little Company of Mary Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6661
    B. U. Chung, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 22, 1972.

    Dr. B. U. Chung, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6716
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed September 22, 1972.

      Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6721
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed September 22, 1972.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6741
    American Oil Company, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed September 22, 1972.

    American Oil Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6749
    Maryville Academy, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 22, 1972.

    Maryville Academy, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5460
    Robert F. Jerrick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1971.

      Petition of Respondent for Rehearing denied October 10, 1972.

    Raymond L. McClory, Attorney for Claimant.
    William G. Clark, Attorney General; Morton Zaslavsky, Assistant Attorney General, for Respondent.
   Holderman, J.

In 1958, the claimant, Robert F. Jerrick, was appointed Police Magistrate of the City of Berwyn to fill a vacancy. In 1959, he was elected to that office, and on April 2,1963, he was reelected.

At the time of his reelection on April 2,1963, his annual salary was $5,000.00. On March 26,1963, which was prior to claimant’s reelection to a new term of office, the City Council of the City of Berwyn, passed an ordinance raising the annual salary of Police Magistrates, but deferred the effective date of the increase to December 1, 1963. The ordinance was approved on March 28, 1963, and reads as follows:

“That commencing on the 1st day of December, 1963, and thereafter, the Police Magistrate shall receive and be paid a yearly salary in the sum of Eight Thousand Four Hundred ($8,400.00) Dollars annually, payable in monthly installments of Seven Hundred ($700.00) Dollars each.”

On January 1,1964, a new Judicial Article of the Illinois Constitution of 1870, providing for the reorganization of our Courts, went into effect. The schedule of the said Judicial Article provides in part as follows:

“Paragraph 4: Each supreme court judge, circuit court judge, superior court judge, county judge, probate judge, judge of any city, village or incorporated town court, chief justice and judge of any municipal court, justice of the peace and police magistrate, in office on the effective date of this Article, shall continue to hold office until the expiration of his term, as follows: ... '
“(e) Police magistrates and justices of the peace shall be magistrates of. the several circuit courts, and unless otherwise provided by law, shall continue to perform their non-judicial functions for the remainder of their respective terms.
“Paragraph 5: On the effective date of this Article,
“(a) All justice of the peace courts, police magistrate courts, city, village, and incorporated town courts, municipal courts, county courts, probate courts, the Superior Court of Cook County, the Criminal Court of Cook County and the Municipal Court of Chicago, are abolished and all their jurisdiction, judicial functions, powers and duties are transferred to the respective circuit courts, and until otherwise provided, by law, non-judicial functions vested by law in county courts or the judges thereof, are transferred to the circuit courts; . . .”

As a consequence of reorganizing the mentioned courts, the State of Illinois assumed payment of salaries to justices of the peace and police magistrates. It became necessary for the Administrative Office of the Illinois Courts to locate all justices of the peace and police magistrates whose terms had not expired on the effective date of the Judicial Article. Sec. 17 of Article VI of the Constitution provides for the payment of salaries to these hold-over justices of the peace and police magistrates, who became magistrates of the Circuit Court, as follows:

“Judges and magistrates shall receive for their services salaries provided by law. The salaries of judges shall not be diminished during their respective terms of office. Judicial officers may be paid such actual and necessary expenses as may be provided by law. All salaries and expenses shall be paid by the State, except that judges of the Appellate Court for the First District and circuit and associate judges and magistrates of the Circuit Court of Cook County shall receive such additional compensation from the county as may be provided by law.”

The salary “provided by law” pursuant to Sec. 17 for hold-over magistrates is set forth as follows in the Ch. 53, Secs. 8.1 through 8.3, Ill.Rev.Stat., 1963:

“8.1. For the remainder of his term each police magistrate or justice of the peace who becomes a magistrate of the circuit court pursuant to Paragraph 4 (e) of the Schedule of Article VI of the Illinois Constitution shall be paid out of the State Treasury a salary at the annual rate, which immediately prior to January 1, 1964, was payable to him by the County in case of a justice of the peace, or by the municipality in the case of a police magistrate.

“8.2. The municipal treasurer in the case of a police magistrate and the county treasurer in the case of a justice of the peace shall, on or before November 1, 1963, certify to the Auditor of Public Accounts the name and annual salary being paid to any such police magistrate or justice of the peace.

“8.3. The provisions of Sec. 1 of this Act shall take effect on January 1,1964. The provisions of Sec. 2 shall take effect upon the approval of this Act by the Governor.”

With reference to Sec. 8.2, the following was stipulated by claimant and respondent:

“That on October 29,1963, the controller of the City of Berwyn, Theodore F. Kozak, did mail to the Auditor of Public Accounts, Springfield, Illinois, a certification as follows:
“This is to certify that prior to January 1,1964, the salary of Judge Robert F. Jerrick, of the City of Berwyn, Illinois, was $8,400.00 per annum.”

Notwithstanding the above stipulation, the State of Illinois paid claimant during the remainder of his unexpired term from January 1,1964, to April 10,1967, a salary at the annual rate of $5,000.00 or $416.66 per month.

Claimant cashed the pay checks as received, but did so under protest. He voiced his protests in writing by letters to the Supreme Court Administrative Office and to the Auditor of Public Accounts, Michael J. Howlett. Claimant contended that he was not being paid the salary due him under the above quoted Ch. 53, Sec. 8.1, Ill.Rev.Stat., 1963; that “the annual rate, which immediately prior to January 1,1964, was payable to him” by the City of Berwyn was $8,400 or $700.00 per month.

It seems to us that claimant’s contention is justified by the plain language of the statute in question. There are no ambiguous terms in the statute, which would warrant any interpretation other than literal, based on the actual words in their ordinary meaning.

The respondent contends that the “annual rate of salary payable immediately prior to January 1,1964” should mean the amount received for the largest portion of the year; and that “immediately prior” means the November first certification date or some other date prior to December first. The plain language of the statute does not permit such construction. Rate by definition is a measure by comparing one thing to another at a given point in time. In this instance, by comparing dollars to years. “Annual rate” does not, as respondent contends, mean the rate at which claimant was actually paid for the entire year. Prior to December first, claimant was paid at the rate of $5,000.00 per year. After that date, the rate was $8,400.00 per year. This rate was established by the Berwyn City Council prior to claimant’s reelection to a new term of office. Had the legislature intended the yardstick to be the average rate, it would have so stated. “Immediately prior to January 1, 1964” may encompass various periods depending upon the context of the case. In this case, the clear meaning is that increment in time, which preceded January 1,1964, during which a rate could be determined or for which no change in rate occurred. November 1, or for that matter the last day of November, could not have been “immediately prior to January 1” because a change of rate occurred afterwards, which was still prior to January 1. Therefore, the next increment of time had to be the one immediately prior. Again, had the legislature intended November 1, instead of “immediately prior to January 1,” it would have so stated.

Respondent further contends that this Court would be warranted in finding that the action by the Berwyn City Council in raising claimant’s salary just one month before the effective dates of the Judicial Article was an attempt to defraud the State. This is a serious charge. Improper motives, bad faith, or a purpose to disregard sound public policy must not be attributed to any lawmaking power except on the most cogent evidence. 50 Am. Jur. Stats., Secs. 381, 382, 383. Respondent offered absolutely no evidence to support its charge of an intent on the part of the Berwyn City Council to defraud the State. How, then, can it ask this Court to indulge in such a presumption?

It is the duty of the courts to impute proper motives to those who exercise legislative power. In this case, claimant offered a plausible explanation for the action of the Berwyn City Council based on economic considerations.

We find that, by virtue of the ordinance of the City of Berwyn, passed on March 26, 1963, and approved March 28,1963, the plain language of Ch. 53, Sec. 8.1, Ill.Rev.Stat, 1963, requires a determination that $8,400.00 was the annual rate, which was payable to claimant immediately prior to January 1, 1964, by the municipality.

He is, therefore, entitled to recover the sum of $11,094.26, being the amount of the difference in the salary he received, and that which he should have received from January 1, 1964, to April 10, 1967.

The claimant, Robert J. Jerrick, is hereby awarded the sum of $11,094.26.


text:
    (No. 6773
    Northeast Community Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 22, 1972.

    Northeast Community Hospital, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6786
    Standard Oil Division of American Oil Company, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed September 22, 1972.

    Standard Oil Division of American Oil Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6842
    Springfield Mechanical Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 22, 1972.

    Springfield Mechanical Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6257
    Atkins, Barrow and Graham, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1972.

    D. V. Dobbins, Dobbins, Fraker & Tennant, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

This matter is before the Court on a motion filed by the State to disregard a joint stipulation previously entered into between claimant and the State of Illinois and which motion requested dismissal of the Complaint. Claimant has filed objections to the motion.

Claimant requests payment in the sum of $1,950 for architectural services rendered by it in connection with the construction of a building at Jackson State Hospital erected by the Illinois Building Authority. Claimant had a contract with Illinois Building Authority to render services and was paid for all services rendered except for the additional services forming the basis for this claim.

A Joint Stipulation was entered into between claimant and the Assistant Attorney General consenting to entry of an award in the amount of $1,950. The theory of the claimant was that the refusal for payment was solely due to the fact that funds appropriated had lapsed.

In connection with the Motion to Disregard the Stipulation, the State contends that the Stipulation was erroneous and argues that since the Illinois Building Authority was a “body corporate” that any action for such services would lie in an action at law and not in a claim before the Court of Claims.

In response, the claimant argues that the State is bound by the Stipulation and should not be permitted to “weasel out of an agreement made by them” and that Counsel was now “crawfishing.” We are not impressed by the claimant’s personal attack on the Attorney General in his effort to disregard the Stipulation.

This Court feels that if the extra services were rendered to the Illinois Building Authority that the position of the Attorney General would be correct notwithstanding the Stipulation.

Where there is an adequate remedy at law, the Court of Claims has no jurisdiction. Denton vs. State, 22 C.C.R. 83.

The Illinois Building Authority is a “body corporate and politic” (Ch. 127, Sec. 213.1, Ill.Rev.Stat., 1969). It is not a “State agency” (The People vs. Barrett, 382 Ill. 321, 46 N.E. 2d 951) (Berger vs. Howlett, 25 Ill. 2d 128, 182 N.E. 2d. 673).

However, it is contended by the claimant that the services were rendered not to the Illinois Building Authority but to the Department of Mental Health. If this is true, then the Claim would properly be brought before the Court of Claims for allowance.

There is no dispute as to the services rendered nor as to the amount of charge made. The Court feels, however, that the State is entitled to a hearing on whether the services were rendered under the contract with the Illinois Building Authority or whether they were rendered to the Department of Mental Health directly and not as part of the contract.

There is in the file, correspondence indicating that the Department of Mental Health actually contracted for the services. However, there is evidence that the Claim was presented to the Illinois Building Authority which refused to pay it.

The Motion to Dismiss the Stipulation is therefore allowed, but the Motion to Dismiss is denied.

This matter is remanded for hearing solely on the question of whether the services were rendered to the Illinois Building Authority or to the Illinois Building Authority or to the Department of Mental Health and for a decision in accordance with the evidence át the hearing and consistent with this decision.


text:
    (No. 6276
    United Travel Service, Inc., Claimant, vs. State of Illinois, Various Agencies, Respondent.

      Opinion filed October 10, 1972.

    United Travel Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6544
    Univac, Division of Sperry Rand Corporation, Claimant, vs. State of Illinois, Auditor of Public Accounts, Respondent.

      Opinion filed October 10, 1972.

    Univac, Division of Sperry Rand Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6615
    Ace Hardware No. 156, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed October 10, 1972.

    Ace Hardware No. 156, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6628
    A-1 Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 10, 1972.

    A-1 Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6706
    Willa Mae Austin, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 10, 1972.

      Kleiman, Cornfield & Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6727
    St. Joseph Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 10, 1972.

    St. Joseph Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6740
    Mrs. Robert Marks, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed October 10, 1972.

    Mrs. Robert Marks, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6743
    Raymond L. Terrell, Claimant, vs. State of Illinois, Department of Insurance, Respondent.

      Opinion filed October 10, 1972.

    Raymond L. Terrell, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6791
    Carrie M. Webster, As the Widow of and on behalf of the Estate of Robert S. Webster, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed October 10, 1972.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


author: Per Curiam.

text:
    (No. 6843
    Betty A. Addante, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed October 10, 1972.

    Kleiman, Cornfield & Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6846
    Joan Cochrane, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed October 10, 1972.

    Kleiman, Cornfield & Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6881
    Howard Johnson’s Motor Lodge Southeast, Claimant, vs. State of Illinois, Department of Business and Economic Development, Respondent.

      Opinion filed October 10, 1972.

    Howard Johnson’s Motor Lodge Southeast, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


author: Burks, J.

text:
    (No. 6858
    Rosalie Frazier, Individually, and Rosalie Frazier as Mother, Next Friend and Natural Guardian of Debbie Kay Frazier, A Minor Child, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1972.

    Hanagan, Dousman and Giamanco, Attorney for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Burks, J.

ORDER

Denying Respondent’s Motion to Dismiss and Granting Claimant leave to file an Amended Complaint

This matter is now before the court on respondent’s motion to dismiss. Said motion was filed on September 19, 1972. We also have before us claimant’s objections to said motion filed on September 25, 1972.

This court finds that respondent has correctly stated proper grounds for dismissal of this complaint under the rules of this court. However, claimant has submitted a reasonable explanation for the errors and omissions in the complaint as to certain required and essential allegations concerning the claim previously filed with the Industrial Commission and the award previously received by the claimant arising out of the same occurrence.

The court is satisfied, as stated in claimant’s motion, that the said errors and omissions were wholly inadvertent, not intentional, and that claimant had no intent to seek a double recovery on a claim arising out of the same occurrence. Respondent’s motion to dismiss will be denied, and claimant will be granted leave to file an amended complaint in compliance with the rules of the Court of Claims. We particularly call claimant’s attention to Para. A-4 of Rule 5 referred to in Para. 5 of respondent’s motion. It appears from the pleadings that Aetna Casualty and Surety Company may, in effect, be the sole owner of this claim since any supplemental amount that might be awarded by this court would be subject to the lien of said company. The following explanation of the court’s views on this point should be included in this order.

The court has in no way considered the merits of this claim. We have noticed that the complaint purports to state a cause of action against the respondent for wrongful death; and that it contains two separate counts asking $25,000 for the benefit of the decedent’s widow and an additional $25,000 for the benefit of the decedent’s minor child.

Section 2 of the wrongful death statute (Ch. 70, Sec. 2, Ill.Rev.Stat., 1971,) states that a wrongful death action “shall be brought by the personal representatives of the deceased person” and that “the amount recovered in such action shall be for the exclusive benefit of the widow and next of kin . . .”. It further provides that the amount recovered in such action “shall be distributed by the court to each of the widow and next of kin . . . .”. The statute obviously does not authorize a separate cause of action by the widow and by the next of kin. While the limitation on the amount of a judgment has been eliminated from the wrongful death act, the limitation in Sec. 8(d) of the Court of Claims Act was in effect on the date of decedent’s death. Said section at that time imposed a limit of $25,000 on the amount of any award that may be granted by this court in any case sounding in tort.

Assuming that claimants could prove in this court that they are entitled to the maximum award of $25,000, Sec. 26 of the Court of Claims Act states that “any recovery awarded by the court shall be subject to the right of set-off of an amount equal to the monies received from any other source”.

Since claimants were previously awarded death benefits for the death of the decedent in the amount of $19,950 by the Illinois Industrial Commission on February 14, 1972 (No. 71 WC 27459), the set-off of this amount would reduce the maximum award possible by this court to $5,050. Said remaining amount apparently would be payable to Aetna Casualty & Surety Company in satisfaction of its lien against any award from a third party (the respondent) pursuant to Sec. 5(b) of the Workmen’s Compensation Act (Ch. 48, Sec. 138.5(b), Ill.Rev.Stat., 1971). This is confirmed by Para. 7 of claimants’ motion which reads in part as follows:

“Aetna Casualty & Surety Company, the Workmen’s Compensation carrier for Culberson Construction Company, Inc., under Section 5(b) of the Illinois Workmen’s Compensation Act, will have a lien in the amount of $19,950.00 on any recovery claimant is awarded under the case filed in the Court of Claims of the State of Illinois.”

Section 25 of the Court of Claims Act requires the claimant to exhaust all other remedies and sources of recovery for the same injuries or for the wrongful death of a decedent before an award may be entered by this court. Then Section 26 requires the court to set-off the amount received from any other source from the amount of any award based on the same cause of action. These sections can only be interpreted to mean that an award by this court is not to be made in addition to, but exclusive of, any death benefits or other compensation otherwise payable by law.

This differs from Sec. 5(b) of the Workmen’s Compensation Act which does not require the claimant to exhaust other remedies or causes of action he may have against third parties who may also be legally liable for the same injury or for the wrongful death. If he does so, however, his employer’s compensation carrier has a lien on the amount of the recovery from a third party as stated in claimants’ motion.

IT IS HEREBY ORDERED that respondent’s motion to dismiss be, and the same is, hereby denied.

IT IS FURTHER ORDERED that claimant be, and is hereby, granted leave to file an amended complaint in compliance with the rules of the court, and that said amended complaint shall be filed within thirty days from the date of this order.