text:
    Eugene Warfel v. State of Illinois.

      Opinion filed June 1, 1917.

    Militaba Service — injuries received in. Where a member of the Illinois National Guard is injured in the performance of duties under orders of his commanding officer, he is entitled to compensation as damages for such injuries.
    James E. Davis, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant who is a resident of the City of Galesburg, Illinois, was a regularly enlisted soldier in Company “C” 6th Regiment of Infantry, Illinois Eational Guard.

On the 16th day of August, 1916, while acting under the orders of his superior officer, he was assisting other members of his company in moving the arms and stores of said company from the old armory building to the new armory building.

There were birds nests located in and about the roof and rafters of the armory and under instructions from the officer in charge, claimant was endeavoring to remove the same. While so doing, he slipped and fell from the roof of the building to the floor striking projections in the way of heat radiators and other obstructions and as a result of the fall his left leg was fractured between the knee and the hip; his left forearm dislocated and fractured between the elbow and wrist; his left jaw fractured and all the teeth broken off, and he was otherwise greatly bruised and injured.

Claimant was taken to a hospital at Galesburg where he remained for some months and later was removed to a hospital at Chicago where he received treatment under a specialist in that city.

His injuries are such that they failed to respond to treatment to any appreciable extent. It was necessary to rebreak and reset the leg and it is now about one inch shorter than normal. This, together with the other injuries has caused claimant to be permanently disabled, and from the evidence of the physicians who treated him, it is certain that he will never be able to follow his usual occupation.

His right to recover which is not disputed by the State is based on section 11 of article 16 of the State Military and Haval code, paragraph 154, chapter 129 Hurd’s Revised Statutes, 1913, which is as follows:

“In every case where an officer or enlisted man of a National Guard or Haval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the commander-in-chief, said officer or enlisted man, or his heirs or dependents shall have a claim against the State for financial help and assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. * *

The record discloses that claimant was a young man of about twenty-three years of age; that prior to the injury he was in good health and had an earning capacity of $20.00 per week.

Taking into consideration the injuries sustained by claimant, and money expended by him for medical services and hospital bills, we are of the opinion that he should be awarded the sum of six thousand five hundred and 00/100 ($6,500.00) dollars.


source: Caselaw Access Project

license: Public Domain

text:
    Myer J. Stein v. State of Illinois.

      Opinion filed June 1, 1917.

    Legal Services — payment for will not he made, when. Payment for legal services rendered on behalf of the State, will not be made when the employment of appointment of the person rendering such services is by the authority of any other than the Attorney General.
    George B. Gillespie, for Claimant.
    Edward J. Brundage, Attorney General, for State
   A resolution was passed by the Senate of the State of Illinois, on or about June 19, 1915, authorizing and empowering one of its committees to investigate the educational system of the City of Chicago. The committee in question was authorized to employ an attorney and the necessary assistants required to make the investigation and in accordance therewith said committee on July 2, 1915, retained claimant to act as its attorney.

Claimant performed the work required of him by the committee from the date of his employment up to and including October 14, 1915; during which time he met with the committee at its various meetings and conducted by the investigation by examining witnesses and taking testimony in the City of Chicago and elsewhere.

The claim in this case is for the legal services rendered the committee amounting to $2,600.00, and for moneys paid out in its behalf, amounting to $1,100.00, making a total of $3,700.00.

A demurrer was filed by the State to claimant’s position setting forth in substance: 1st, That the committee appointed by the 49th General Assembly to sit during the recess of such assembly had no legal existence after the sine die adjournment on June 30, 1915.. 2nd, That said committee had no authority to employ an attorney as the Attorney General, alone, is the legal advisor of the General Assembly and its committees.

In view of the recent decision handed down by the Supreme Court of this State, Fergus v. Russel, 270 Ill. 344, we must hold that the committee in this case had no authority to employ claimant as its attorney.

The demurrer is sustained.


text:
    Patrick H. Giblin v. State of Illinois.

      Opinion filed June 1, 1917.

    Miutabt Service — Warfel v. State, ante followed. This case is governed by the facts in the case of Warfel v. State, supra.

    T. J. Sullivan, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant is a resident of Springfield, Illinois. On the 13th day of August, 1915, he was injured while employed as a clerk in connection with the Adjutant General’s department of the State. At the time of his injury he was acting under the orders of his superior officer in storing provisions in boxes and cases at Camp Lincoln, which is located northwest of Springfield, Illinois.

He was compelled to stand upon a platform about ten feet in height in order to handle the different boxes and cases and while so working the platform collapsed and claimant was thrown to the ground and as a result of his fall, his left arm and shoulder were broken and fractured.

Prior to claimant’s injury he was capable of earning at the rate of $21.00 per week, and as a result of the injury in question he was precluded from doing any work for a period of twenty weeks. He was also compelled to lay out the sum of $160.80 for hospital bills and surgeons’ fees, in endeavoring to be cured.

In this case the State is not making any defense, and"it is similar to the case of Warfel v. State, in which an opinion was filed at this term.

For the reasons given in the Warfel case, we are of the opinion that claimant is entitled to an award of $580.80, which includes the loss of services by claimant while he was incapacitated from work on account of his injury, together with the money expended by him for hospital bills and surgeon fees.

Claimant is accordingly awarded five hundred eighty and 80/100 ($580.80) dollars.


author: Per Curiam.

text:
    (No. 6784
    Xerox Corporation, Claimant, vs. State of Illinois, Northeastern Illinois State University, Respondent.

      Opinion filed July 1, 1974.

    Xerox Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Frank M. Brady, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-409
    Federal Landscaping Co., Inc., vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 1, 1974.

    Federal Landscaping Co., Inc., Claimant pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-439
    Quality Sheet Metals, Inc., Claimant, vs. State of Illinois, Capital Development Board, Respondent.

      Opinion filed July 1, 1974.

    John C. Feirich Associates, Chartered, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-467
    Hawkins-Walters Electric, Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 1, 1974.

    Hawkins-Walters Electric, Inc., Claimant pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-473
    Wright Building Center, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 1, 1974.

    Wright Building Center, Claimant, pro se.

      William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-539
    Edgewater Hospital, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed July 1, 1974.

    William L. Silverman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-600
    George F. Garman, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed July 1, 1974.

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


author: Perlin, C. J.

text:
    (No. 6309
    Fred Paul Kloese, Claimant, vs. State of Illinois, Department of Public Works and Buildings, Respondent.

      Opinion filed July 10, 1974.

    Topper & Weiss, Attorney for Claimant.
    William J. Scott, Attorney General; John W. Purney, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Fred Paul Kloese, has brought this action seeking damages for personal injuries sustained when the automobile in which he was a passenger collided with the rear of a dump truck being operated by respondent, Andrew Ferrucci, an employee of the State of Illinois.

Claimant contends that Ferrucci was negligent in stopping his truck in the middle of a roadway, in violation of Chapter 95Mi, Section ll-1301(a), Illinois Revised Statutes; in stopping the vehicle without displaying parking lights or emergency lights, in violation of Chapter 95%, Section 12-104, Illinois Revised Statutes; in operating the truck without sufficient lights, in violation of Section 12-102 of Chapter 95%, Illinois Revised Statutes; in failing to keep a proper lookout for vehicles on the highway; and in being otherwise careless and negligent in operating his vehicle.

The incident occurred on January 9, 1970, at approximately 11:30 p.m. Claimant was traveling in an easterly direction on 95th Street in a forest preserve area of Cook County, Illinois, in an automobile being driven by one Elwood Stanley. Respondent Ferrucci was also traveling in an easterly direction on 95th Street. He was alone in his vehicle, a four-ton dump truck, on a routine "ice and snow patrol” which required him to travel the roads in the area and salt patches of ice.

At the site of the occurrence, 95th Street is a two-lane, unlighted roadway with one lane for westbound traffic and one lane for eastbound traffic. Approximately 200 feet west of the crash site, the road travels over a hill.

Ferrucci described the truck as bearing six red lights on the rear, placed in a "V” shape pattern. Each light was four inches in diameter. The two lower running lights were two feet apart and approximately three feet off the ground in the center of the truck. The two middle running lights were four feet apart and four feet off the ground, and the upper lights were six feet off the ground and five feet apart. The top of the truck bore a revolving amber "Mars” light and two flashing red lights extending from the sides of the truck. The "Mars” light and the flashing lights were operated by two separate switches located in the cab of the truck.

The weather was clear, although the sides of the road were snow covered.

The testimony of the claimant and Elwood Stanley, the driver of the car in which he was driving, directly contradicts that of respondent Ferrucci as to the circumstances of the accident. Stanley testified that he cleared the crest of a hill about 200 feet west of the crash site, traveling approximately 35 miles per hour. He saw the taillights of respondent’s truck and kept going until he noticed that the truck was stopped. He said he applied his car brakes when he was four to five car lengths behind the truck but was unable to stop before striking the truck. He testified that he could not swing into the westbound lane of traffic because of an oncoming car, and he could not drive onto the right shoulder of the road because of a car stalled on the shoulder to the right of the truck.

According to Stanley, the truck was stopped at the moment of impact and neither the "Mars” light nor the flashing red lights on the sides of the truck were operating.

Ferrucci radioed for police following the accident, and invited claimant and Stanley to await their arrival in the cab of his truck. Stanley said that while sitting in the cab, he noticed for the first time the reflection of the truck’s blinking lights.

Stanley was ticketed for driving too fast for conditions, and entered a plea of guilty to the charge. He said he did so on the advice of his parents, since it was his first ticket.

Claimant testified that when Stanley’s car cleared the crest of the hill just west of the accident site, he noticed two small obscure red lights "ahead of them on respondent’s truck. He could not tell if the lights were moving. He did not see a "Mars” light or other flashing lights on the truck. He said that he called Stanley’s attention to the truck when they were about 75 to 100 feet away. When the collision occurred, he was thrown against the dashboard of the car and he fell stunned to the floor of the car. His glasses flew off, and he had to search for them. He got out of the car "five or ten minutes” after the accident.

Claimant testified that while they awaited the arrival of police in the cab of Ferrucci’s truck, he saw Ferrucci turn on the "Mars” light and the flashing red blinking lights. Claimant said that he never saw the "Mars” light or flashing lights on the truck prior to the impact.

Claimant described the truck as being "large, dark, and heavy.”

Andrew Ferrucci, called by the claimant as an adverse witness, testified that he was in the process of salting an ice patch at the time of the accident. He said his vehicle "was moving very slow, five or ten miles per hour” at the moment of impact. He said he radioed in to report an abandoned auto on the shoulder of the road "probably” at the same time as he was salting. He estimated that approximately two or three minutes elapsed between his call about the abandoned car and the accident. He said that the accident occurred at, or shortly beyond, the eastern most end of the ice patch.

Phillip Alyoyino, Ferrucci’s supervisor at the time of the accident, was called to the crash site. He described Ferrucci’s truck as being "bright orange,” and said it was cleaned after every snowstorm. He said that when he arrived at the scene, the "Mars” light and flashing red lights on the truck were operating.

He said that respondent’s truck was resting on an ice patch, and the wheels of Stanley’s car just touched the western edge of the patch.

Claimant sustained damage to eight of his teeth in the accident. Two were removed, and a bone graft was performed to fill the hole caused by the extraction. Several other teeth had to be capped, and two bridges inserted. Claimant’s hospital and dental bills totalled $1,841.00.

To recover for his injuries, claimant bears the burden of establishing by a preponderance of the evidence that the respondents were negligent; that he was free from contributory negligence; and that the negligence of the respondents was the proximate cause of the injuries. Respondents contend that these elements of liability were not proven by the claimant, and after a careful consideration of the record, we agree.

Claimant initially alleges in his complaint, that respondent was negligent in stopping his vehicle in the middle of a roadway without displaying parking or emergency lights, in violation of certain provisions of the Illinois Motor Vehicle Act. Aside from the fact that the evidence is contradictory as to whether Ferrucci did indeed stop his vehicle in the middle of the roadway without proper lights, claimant cannot prevail upon this theory. At the time of the occurrence, Section 120 (f) of the Illinois Motor Vehicle Act, Chapter 951/2, Ill. Rev. Stat. 1969, Sec. 120 (f), provided:

"The provisions of this Act, with the exception of Articles IV and V, do not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of the highway, but apply to such persons and vehicles when traveling to or from such work.”

While contradictory in other respects, the record is clear that at the time of the occurrence, Ferrucci was engaged in work upon the surface of the highway. Respondent’s charges of negligence, based upon the respondent’s violation of provisions of the Motor Vehicle Act while so engaged, must therefore fail.

Notwithstanding the provisions of Section 120(f) of the Illinois Motor Vehicle Act, however, a State employee engaged in work upon a highway is held to a standard of ordinary care in performing his work. Creamer v. Rode, 37 Ill.App. 2d 148, 185 N.E. 2d 345 (1962); Lusietto v. Kegan, 107 Ill.App. 2d 239, 246 NE 2d 24 (1969). Ferrucci was, therefore, obliged to perform his work upon the highway as would an ordinarily prudent person under similar circumstances.

Both claimant and Elwood Stanley, the driver of the car in which claimant was riding, testified that Ferrucci’s truck was stopped at the moment of impact, and that warning lights with which the truck was equipped were not operating. Ferrucci stated that the truck was moving, and the warning lights, fully operational. Claimant further testified that the truck was dark in color, whereas Ferrucci’s supervisor, who arrived at the accident site shortly after the collision, testified that the truck was bright orange in color. It is uncontradicted, however, that the rear of Ferrucci’s truck bore six red lights, each of which was four inches in diameter. Both claimant and Stanley, the driver of the car, observed lights on the truck as they passed over the crest of a hill several hundred feet from the crash site.

The Court must conclude from the evidence before it, that the respondent’s truck was being operated with adequate lights to warn the motoring public. In our view, claimant’s injuries were proximately caused by the failure of Stanley, driver of the car in which claimant was riding, to keep a proper lookout and to keep his automobile under proper control.

The claim is hereby denied.


text:
    (No. 73-CC-465
    Licata Moving and Storage Co., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed July 10, 1974.

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


text:
    (No. 74-CC-270
    Commonwealth Edison Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 10, 1974.

    George O. Shaffner, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-444
    Licata Moving & Storage Co., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed July 10, 1974.

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


text:
    (No. 74-CC-569
    Donna J. Robinson, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 10, 1974.

    Donna J. Robinson, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-602
    Moffett Realty and Management Co., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 10, 1974.

    Moffett Realty and Management Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-646
    Capital Chrysler Plymouth, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 10, 1974.

    Irma L. Muncy, Claimant, pro se.

      William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-698
    Lewis University Campus Shop, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed July 10, 1974.

    Lewis University Campus Shop, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-713
    Victor Comptometer Corporation—Business Products Group, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 10, 1974.

    Victor Comptometer Corporation—Business Products Group, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-714
    R. Herschel Mfg. Corp., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 10, 1974.

    R Herschel Mfg. Corp., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-737
    James Edward Redenbo, Claimant, vs. State of Illinois, Department of Law Eforcement, Respondent.

      Opinion filed July 10, 1974.

    James Redenbo, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-739
    Alex J. Spadoni, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 10 1974.

    Alex J. Spadoni, M.D., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-749
    Norman Staff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    Norman Staff, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-750
    Henry Vanderheide, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    Henry Vanderheide, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-754
    Gary Rau, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    Gary Rau, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-766
    Lawrence & John Frese, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    Lawrence & John Frese, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-768
    Park Chrysler Plymouth, Inc., Claimant, vs. State of Illinois, Department of Personnel, Respondent.

      Opinion filed July 10, 1974.

    Park Chrysler Plymouth, Inc., Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-769
    Park Chrysler Plymouth, Inc., Claimant, vs. State of Illinois, Department of Public Health, Respondent.

      Opinion filed July 10, 1974.

    Park Chrysler Plymouth, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-775
    Phil Doherty, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 10, 1974.

    Phil Doherty, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-792
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Illinois Environmental Protection Agency, Respondent.

      Opinion filed July 10, 1974.

    James Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-793
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 10, 1974.

    James Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-795
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Agriculture, Respondent.

      Opinion filed July 10, 1974.

    James Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-798
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Public Health, Respondent.

      Opinion filed July 10, 1974.

    James M. Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-803
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Personnel, Respondent.

      Opinion filed July 10, 1974.

    Giffin, Winning, Lindner, Newkirk, Cohen, Bodewes & Narmont, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-806
    Mobil Oil Corporation Claimant, vs. State of Illinois, Illinois Arts Council, Respondent.

      Opinion filed July 10, 1974.

    James Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-809
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    James Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-814
    Jerry Wedeking, Claimant, vs. State of Illinois, Department of Personnel, Respondent.

      Opinion filed July 10, 1974.

    Jerry Wedeking, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-833
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 10, 1974.

    D. K. Mc Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-844
    American Institute of Physics, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    American Institute of Physics, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-846
    Sue J. Bowles, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    Sue J. Bowles, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-856
    Aubrey A. Hickam, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    Aubrey A. Hickam, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-885
    Pamela K. Condre, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 10, 1974.

    Pamela K. Condre, Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6888
    Cunningham Movers, Inc., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed July 19, 1974.

    Bernard A. Henning & Associates, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-782
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed July 19, 1974.

    Giffin, Winning, Lindner, Newkirk, Cohen, Bodewes & Narmont, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-839
    Luce Brothers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 19, 1974.

    Luce Brothers, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-841
    Saundra K. House, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed July 19, 1974.

    Saundra K. House, Claimant, pro se.
    William J. Scott, Attorney General; Howard W Feldman, Assistant Attorney General, for Responden
   Per Curiam.


text:
    (No. 74-CC-842
    Office Equipment Company of Chicago, Claimant, vs. State of Illinois, Industrial Commission, Respondent.

      Opinion filed July 19, 1974.

      Office Equipment Company of Chicago, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-862
    Excerpta Medica, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 19, 1974.

    Excerpta Medica, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-871
    Pontiac Osteopathic Hospital, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 19, 1974.

    Pontiac Osteopathic Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-872
    Mary M. Coulombe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 19, 1974.

    Mary M. Coulombe, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6531
    Central Scientific Company, Claimant, vs. State of Illinois, Northeastern Illinois University, Respondent.

      Opinion filed July 25, 1974.

    Central Scientific Company, Claimant, pro se.
    William J. Scott, Attorney General; Frank M. Brady, Assistant Attorney General, for Respondent.

      Contracts — lapsed appropriation. When the appropriation from which a claim should have been paid has lapsed, the Court will enter an award for the amount due claimant.
   Per Curiam.


text:
    (No. 74-CC-236
    Midwest Newsclips, Inc., Claimant, vs. State of Illinois, Office of the Lieutenant Governor, Respondent.

      Opinion filed July 25, 1974.

    Midwest Newsclips, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-252
    Marvin Greenbaum, Manuel Toledo, Edward Whalen, Clarence Lipman, Claimants, vs. State of Illinois, Office of the Lieutenant Governor, Respondent.

      Opinion filed July 25, 1974.

    Marvin Greenbaum, Manuel Toledo, Edward Whalen, Clarence Lipman, Claimants, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-690
    Esterline Angus, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed July 25, 1974.

      Esterline Angus, Claimant pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-732
    Labconco Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 25, 1974.

    Labconco Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-761
    Phillip J. Haggerty, Claimant, vs. State of Illinois, Board of Vocational Education and Rehabilitation, Respondent.

      Opinion filed July 25, 1974.

    Phillip J. Haggerty, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-765
    Homer P. Powers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 25, 1974.

    Homer P. Powers, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-791
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Local Government Affairs, Respondent.

      Opinion filed July 25, 1974.

    James M. Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-794
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed July 25, 1974.

    James Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-796
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed July 25, 1974.

    James M. Lestikow, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-800
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed July 25, 1974.

    James M. Lestikow, Attorney for Claimant.

      William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-815
    Southwest Inn, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed July 25, 1974.

    Southwest Inn, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-840
    Gunthrop-Warren Printing Co., Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed July 25, 1974.

    Gunthrop-Warren Printing Co., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-848
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed July 25, 1974.

    D. K. McIntosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-48
    Treasurer, Madison County, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 25, 1974.

    George Musso, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-49
    Robert E. Eckstein, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 25, 1974.

    Robert E. Eckstein, Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Burks, J.

text:
    (Nos. 5137 and 5144
    Consolidated
    Bobby C. and Mary Clark, Della Mae Clark, Claimants, vs. State of Illinois, Respondent.

      Opinion filed July 29, 1974.

    Harris & Lambert, Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

The three claimants in these consolidated claims seek damages for personal injuries allegedly caused by respondent’s negligence in failing to keep the weeds mowed on the shoulder of a highway; in allowing a concrete culvert on the shoulder to be obscured from view by weeds growing up around it; and in failing to provide any warning of this alleged dangerous condition.

All three claimants were injured in the same accident. They were riding in the front seat of a car, owned and driven by Bobby Clark, when the right front tire blew out. The car, after pulling off the paved highway onto the shoulder, struck the foot high concrete culvert, which claimants contend was unmarked and covered by weeds.

Sitting next to the driver, Bobby Clark, was his wife, Mary, and to her right was Mary’s sister, Della Clark. About midday on July 17, 1963, they were driving north on Route 148, a 2-lane paved highway with wide shoulders. When they were about a mile and a half south of Christopher, traveling at a speed of 55 to 60 MPH, the right front tire blew out. It made a loud noise like a gun going off. The driver, Bobby, said he "slowed down gradually, put on the brake and dropped the car off the pavement onto the shoulder”. The shoulder was over 8 feet wide, fairly level with the roadway, and Bobby said he didn’t see anything but high grass on the shoulder. He was still traveling at a speed of 40 MPH when he hit the culvert, which was approximately 250 feet from the point of the blowout.

Bobby, the driver, said he did not see the culvert, because of the weeds, until he was about a car’s length from it and, at that point, he was not able to turn his car in any manner to avoid it.

The concrete culvert, running parallel to the highway, was 10 feet long, 7 inches wide, and one foot high at the end struck by claimant’s car. The culvert was set back 8 feet 5 inches from the edge of the pavement on the outer edge of the shoulder, a set-back distance of nearly 3 feet more than the width of a passenger car. Bobby said his car, a ’59 Buick, struck the culvert headwall about a foot inside the right front wheel. This means that the right side of claimants’ car was about 10 feet off the edge of the pavement, and the left side about 4 feet off the pavement. The car struck the headwall with such force, that it ended up "straddle the culvert”. The car was a total wreck, and all three passengers suffered personal injuries.

The position of claimants’ car at impact indicates that it narrowly missed running off the shoulder and plunging into a drainage ditch which runs parallel to the shoulder and culvert. The ditch is plainly visible in claimants’ photo exhibits. The accident occurred in bright daylight, about noon, on a warm, clear, dry day.

Respondent contends that the proximate cause of this accident was the apparent failure of the driver, Bobby Clark, to keep his car under control after the tire blew out. Respondent also denies that anything it did, nor failed to do, contributed in any way to the accident.

The court finds that the preponderance of the evidence supports the respondent’s position on both issues.

First, we find that the weight of the evidence fails to confirm claimants’ major premise that the culvert was obscured from view by high grass and weeds. All of claimants’ photo exhibits show the headwall of the culvert to be plainly visible from a reasonable distance. There is some uncertainty in the record as to exactly when the photos were taken and as to whether the photos show the condition of the culvert substantially the same as it appeared at the time of the accident. Testimony of claimants’ witnesses is conflicting on this point. It is certain that the pictures were taken a day or more after the accident and before the grass was cut around the culvert.

Claimants introduced eight photo exhibits showing the culvert, the grass, and the weeds as claimants viewed the area from their approach. Claimant, Bobby Clark said that two of the pictures were taken by him and the other six were taken by his brother several days later. When counsel for the claimants showed Bobby the photos marked as claimants’ exhibits A-l through A-8, we find the following questions and answers in the record:

Q Do those photographs correctly show the condition of the culvert, and the surrounding area at the time of the accident?
A [Bobby Clark] Yes sir.
Q Is the condition of the grass and the weeds, as shown in that picture, as it was on the occasion of the accident?
A [Bobby Clark] I think they’d mowed the right-of-way off, but the culvert still hadn’t been cleaned up at the time these pictures were taken.

The court, examining the same photos, and accepting Bobby Clark’s testimony that the culvert had not been cleaned up when the photos were taken, finds that the culvert was clearly visible at the time of the accident. It was certainly not hidden by the weeds at the end facing claimants’ on-coming car. The entire 10 feet top is also visible. Although the photos show the weeds are as high as the culvert in the middle facing the highway, where the culvert is only 7 inches high, this is not the portion claimants would have seen when approaching the culvert on the shoulder. Claimants’ car struck the south end of the 12 inch high culvert which claimants’ photos show was plainly visible from a reasonable distance. Bobby Clark, the driver, said these photos "correctly show the condition of the culvert at the time of the accident”. We emphasize that this statement, corroborated by several of claimants’ witnesses, and accepted by the court, is factual, totally contradicts claimants’ main contention that their view of the culvert was obscured by weeds until they were just a car’s length from it.

We have carefully considered the testimony of claimants’ seven witnesses, who viewed the culvert after the accident, and find a profusion of contradictions as to what they saw. All of them saw high grass and weeds around the culvert. Raymond Marks, Lester Simpson, and Grover Whiteside said that the culvert was completely concealed by the weeds. Others agreed with Bobby Clark’s statement that claimants’ photos correctly show the condition of the culvert at the time of the accident.

Three of claimants’ witnesses, Bill Marks, Robert Gene Lindsay, and George Linsley, friends of the Clarks, after visiting Bobby, Mary, and Della in the Miners Hospital in Christopher, went out to view the scene of the accident. These witnesses went there about midnight after the accident had occurred about noon that day. They had a flashlight when they viewed the culvert. Bill Marks was asked the following question and gave the following answer:

Q I show you petitioner’s exhibits A-l to A-8, being the photographs of the culvert, and ask you if the weed condition shown there is the same as you saw it that night?
A [Bill Marks] Well, pretty much the same.

George Linsley seemed to contradict the above statement by his testimony that you couldn’t see the culvert unless you were "right on it”. Then, on cross examination, he gave the following answers:

Q How far back could you see the culvert?
A Well, from where he run off the road he couldn’t see it at all.
Q Where did he run off the road?
A It was farther back.
Q How far back?
A I don’t know how far.
Q You don’t know whether he could have seen it in an automobile when he was 100 feet, or 200 feet back from it?
A No, I don’t know exactly how far.

Henry Linsley, who went out to see the culvert on the next day after the accident, gave a completely different description from that of the other witnesses. He said, "Coming straight at the culvert from either end, the culvert was concealed, but from the middle of it you could see it”.

Claimants’ photos show just the opposite to be true. The culvert was concealed in the middle but both ends and the top were clearly visible.

Based on claimants’ photo exhibits and the weight of the evidence, the court is impelled to conclude that the culvert was not obscured from claimants’ view and was clearly visible from a reasonable distance.

We turn now to the unrefuted testimony of respondent’s key witness which we believe further absolves respondent from any charge of negligence in connection with claimants’ unfortunate accident.

Victor Yung, State Highway Maintenance Foreman for the section in which the accident occurred, conceded that the last time the weeds were mowed along this particular stretch was 26 days prior to the accident. He said that this was in accordance with his mowing schedule or "pattern” of cutting the shoulders three times a year, during the growing season, with the mowing machines being followed by "brier hookers” who clean out the weeds around the headwalls of the culverts and the 4"x4" warning posts placed at the end of all culverts.

Mr. Yung said there were ten similar culverts within this particular 5-mile stretch from Ziegler to Christopher and that all of the headwalls, including the culvert struck by claimants’ car, were marked with a 4" x 4" warning post which stood 30" high with a reflector attached.

The maintenance foreman said that he inspects this section of highway every other day, and that "I watch when I go down the road to see that these 4 x 4’s are up”. He was positive that a 4 x 4 warning post was in place at the culvert in question on the date of the accident. He said that on the day after the accident, he stopped at this culvert and found that the 4x4 post had been broken off and was laying right down there at the corner of this headwall. The statement finds support in claimants’ photo exhibits A-3, A-4, and A-7 which clearly show the stump of a post at the end of the headwall, as Mr. Yung pointed out when he was shown these photos at the hearing. The court also takes notice that claimants’ exhibit A-l shows a warning post standing at the culvert on the opposite side of the highway, facing southbound traffic, just across the highway from the culvert in question. This fact tends to support Mr. Yung’s statement that "there is a 4 x 4 warning post at all those culvert headwalls”, including the one that claimants’ hit. Mr. Yung stated flatly that whoever hit this particular culvert on the day of claimants’ accident broke off the 4x4 warning post. He said that it could not have been broken off the day before, because he had inspected the culverts that day and no warning posts were missing.

At least one conclusion seems obvious from Mr. Yung’s testimony. Even if the 4x4 warning post had been mysteriously broken off before claimants’ hit the culvert, respondent had no knowledge or notice that this might have occurred.

Claimants argue that, "with knowledge that weeds grow pretty fast, the State was on notice that the culvert would be hidden from view of a passing motorist”. Although we have held that this culvert was not hidden from view at the time of this accident, we assume that the knowledge of such a possibility occurring, was one reason for the State erected the 30" high 4x4 warning posts at all such culverts on this section of highway.

Claimants call our attention to Hammond v. State, 24 C.C.R. 368 (1963), as being similar to the case at bar. In the Hammond case, we held the State guilty of negligence in failing to place a warning post or sign where it had removed the headwall of a culvert on the shoulder of a highway, leaving the remaining portion of the culvert and ditch invisible to users of the shoulder. The case at bar differs from Hammond in that neither the culvert nor the ditch were invisible. Both were clearly visible in claimants’ photo exhibits. But a more important distinction in Hammond, is the essential fact of adequate notice to the State that a dangerous condition existed on its highway. In Hammond, we said at page 368: "The State had adequate notice of the defect, and its plans called for a warning post to be in place at the scene of the injury, since at least the preceding April.” There the accident occurred in October, some six months after the State had actual notice of the dangerous condition and still failed to put up a warning post.

Similarly, in Welsh v. State, 25 C.C.R. 270 (1966), cited by claimants, we held the State guilty of negligence for permitting the existence of a big hole, 7 feet wide and 3 feet deep, in the shoulder of a highway. The hole was just 2.5 feet from the pavement, completely covered by weeds which had not been mowed for over two months, and there was no sign or warning posted. The State had adequate constructive notice of this dangerous condition and totally failed to take appropriate remedial measures.

The crux of the Hammond and Welsh cases, and all similar cases in which we have found the State guilty of negligence, was that the State permitted a dangerous condition to exist without any warning to the public for an unreasonable period of time, after having actual or constructive notice of the danger. In Pyle v. State, No. 5343, filed November 19, 1973, we reviewed a large body of case law from our own and other jurisdictions in which the notice requirement rule was applied in tort actions against various governmental entities.

In the case at bar, the evidence fails to establish any of the three essential elements of proof required to support a finding that the respondent was negligent in this case.

First, claimants’ charge that the culvert was hidden by weeds was refuted by claimants’ own photo exhibits showing the headwall of the culvert clearly visible. Moreover, this culvert was located at the outer edge of the shoulder, 8 feet 5 inches from the pavement, adjacent to a drainage ditch which is also plainly visible in claimants’ photos. Under these circumstances, the culvert could hardly be called a dangerous hazard to a careful motorist who might pull off onto this broad shoulder in bright daylight.

Secondly, claimants charge that there was no warning of what claimants call a dangerous condition, was not established by the evidence. Respondent’s witness testified that there was a 4 x 4 warning post 30" high at the end of the culvert, facing oncoming traffic, with a reflector on it. The reflector, obviously, was to make the post more visible at night, and call a motorist’s attention to the location of the culvert and the outer edge of the shoulder. In bright daylight, when this accident occurred, a warning post would apparently serve no useful purpose unless the culvert and the edge of the shoulder were, in fact, invisible because of weeds. Claimants’ photos show that this was not a fact. Nevertheless, the only evidence in the record suggesting that the warning post at this particular culvert was not standing, and might have been broken off prior to the accident, was a general statement by two passengers in the car. Bobby Clark said that, "when I started for the shoulder, I didn’t see anything but high grass along the shoulder”. Della Clark said that she "saw nothing on the shoulder except the weeds”. The other passenger in the car, Mary Clark, could not remember anything that she saw or might have seen prior to the accident.

Claimants do not deny respondent’s evidence that there are numerous culverts on this stretch of highway; that all of the other culverts have warning posts standing; that the highway maintenance supervisor saw the warning post at this particular culvert in place on the day before the accident; nor do they deny that claimants’ photos show the stump of a post broken off at the culvert after the accident.

Finally, even if a warning post at this culvert were deemed necessary in daytime, and if it had been broken off prior to the accident, there is no evidence that the State had any prior notice of such a situation. There is unrefuted evidence that the warning post was in place on the day before the accident. As we said in the Pyle case (Supra), the State is not guilty of negligence unless it has reasonable notice of a dangerous condition and fails to warn the motoring public. Here, we find that the evidence not only fails to prove the alleged dangerous condition at the culvert, even in the absence of a warning post, but does not even suggest that the State had any prior notice that the warning post at the culvert was broken off.

It is apparent from the evidence, that the proximate cause of claimants’ accident was the driver’s failure to keep his car under control after a front tire blew out while the car was traveling at a speed of 55 to 60 M.P.H. Claimants’ state in their brief that the driver did not panic, but slowed down gradually, applied his brake, and headed for the shoulder. Yet, he was still traveling at a speed of 40 MPH when his car hit the culvert which was 250 feet from the point of the blow out. This indicates that the car’s speed was over 40 MPH when it left the pavement. The blowout did not cause the car to swerve onto the shoulder. Claimant said he "headed” for the shoulder at a speed of over 40 MPH. The court takes notice that experts in safe and careful driving advise that, in case of a blowout, a driver should not turn on to the shoulder of the road until the car is almost stopped.

We are further led to believe, that the driver failed to keep his car under control by the position of the car at impact. Although he was on a big wide shoulder, his car was about to run off the outer edge of the shoulder and plunge into the drainage ditch when it hit the culvert. There was ample room on the shoulder for the car to pass between the culvert and the pavement, yet the left side of claimants’ car was 4 feet from the pavement when it struck the culvert.

Just why the driver failed to see the culvert in bright daylight until he was just a car’s length from it, we do not know. We can only surmise that, in the excitement of the moments following the blowout, he simply failed to notice it. As we said in McAbbe v. State, 24 C.C.R 374, "A person will not be excused, who testifies that he looked and did not see”.

Claimants contend in their brief that, "even if the court finds the driver, Bobby Clark, guilty of contributory negligence, that negligence cannot be imputed to his passengers, Della Clark and Mary Clark”. We accept the rule, well supported by the authorities cited in claimants’ brief, that "the negligence of a driver cannot be imputed to a passenger”. But neither can it be imputed to the State. Since we have found the respondent to be free from any negligence in connection with this unfortunate accident, the claim of all three claimants in this action must be denied.

Claims No. 5137 and No. 5144, consolidated, are herewith denied and dismissed.

        Rules of the Road, "Blowouts” page 37, Michael J. Hewlett, Secretary of State.


text:
    (No. 73-CC-68
    The Jewish Children’s Bureau of Chicago, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 2, 1974.

    Aaron, Aaron, Schimberg & Hess, Attorney for Claimant.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-491
    Florence Jordan, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed August 2, 1974.

    Florence Jordan, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-695
    Charles McCorkle, Jr., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 2, 1974.

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


text:
    (No. 74-CC-699
    Martha B. Shipley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    Martha B. Shipley, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-700
    #6 Dayton Currency Exchange, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    #6 Dayton Currency Exchange, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-705
    Sidney Grossman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

      Sidney Grossman, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-735
    Barbara H. Gaffron, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    Barbara H. Gaffron, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-736
    Leroy Kropp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    Leroy Kropp, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-741
    Dr. Alfred T. King, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-745
    Lawrence Jackson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-755
    Linda D. Fischer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-759
    Elizabeth W. Hill, M.D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-762
    Chicago Heights Currency Exchange, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-763
    Robert H. Kahn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-764
    Robert H. Kahn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-767
    Park Chrysler Plymouth, Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 2, 1974.

    Park Chrysler Plymouth, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-773
    Paul Stratmeyer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    Paul Stratmeyer, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-777
    Singer Business Machines, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    Singer Business Machines, Claimant, pro se.

      William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-778
    Mary Lynn Thallman, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 2, 1974.

    Mary L. Thallman, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-779
    All Wheel Drive Co., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed August 2, 1974.

    Thomas Smith, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-780
    Specialized Services, Inc., Claimant, vs. State of Illinois, Board of Vocational Education and Rehabilitation, Respondent.

      Opinion filed August 2, 1974.

    Specialized Services, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-799
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed August 2, 1974.

    James M. Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-822
    Gulf Oil Corporation, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 2, 1974.

    R. E. Beken, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-827
    Charles Sassoon, M.D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-828
    Charles Sassoon, M.D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-829
    Charles Sassoon, M.D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-834
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 2, 1974.

    D. K. McIntosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-837
    Joseph S. Solovy, M.D., Claimant, vs. State of Illinois, Board of Education and Rehabilitation, Respondent.

      Opinion filed August 2, 1974.

    Joseph S. Solovy, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-838
    Fenimore Book Store, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 2, 1974.

    Fenimore Book Store, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-854
    American Hospital Supply Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 2, 1974.

    American Hospital Supply Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-866
    Jims’s Auto Supply, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 2, 1974.

    Jim’s Auto Supply, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-867
    Thomas Edward Sweeney, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 2, 1974.

    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5311
    Indiana Harbor Belt Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 5, 1974.

    Richard O. Olson and James L. Daubach, Attorneys for Claimant.

      William J. Scott, Attorney General; Bruce J. Finne, Assistant Attorney General, for Respondent.
   Burks, J.

Claimant in this action seeks reimbursement or indemnification from the respondent in the sum of $14,000 which claimant paid to one of its own employees in settlement of a suit against the claimant for personal injuries suffered by its employee. Claimant contends that its employee’s injuries were primarily caused by respondent’s negligence, and that claimant was guilty only of passive technical negligence in connection with its employee’s injuries.

Claimant seeks reimbursement from the State under the doctrine of common law indemnity which is recognized by our courts as a law of this State. Hence, our jurisdiction of the subject matter stems from §8(a) of the Court of Claims Act.

Bearing in mind that the employee who suffered personal physical injuries is not a party to this action, we will hereafter, for the sake of clarity, frequently refer to claimant as "the Railroad” and to the respondent as "the State”.

The Railroad maintains a large yard in Blue Island, in the vicinity of 13800 South Halsted Street. At that location, the State owns and maintains an overpass bridge which serves to carry Halsted Street traffic over the Railroad’s yard.

On November 15, 1960, one of the Railroad’s employees, Harvey P. Geiger, was walking in the Railroad’s yard, under the State’s overpass, when he was struck in the head by something which claimant said was a large plywood sign which the State had allegedly used as a part of a cement form and failed to remove from the area after completion of construction work on its overpass. Harvey Geiger was knocked to the ground by the object that struck his head, and he was rendered unconscious.

The Railroad was operating under and subject to the provisions of the "Federal Employers’ Liability Act”, Title 45, U.S.C.A. §51 et seq. That statute obligated the Railroad to provide its employees with a safe place to work. The injured employee hired a lawyer and filed suit for damages against the Railroad in the Circuit Court of Cook County [No. 62C 1592].

The injured employee, having elected to sue his employer, the Railroad, under the Federal Employers’ Liability Act, did not bring any action against the State. However, the Railroad gave due and timely notice to the State of the injury to its employee; advised the Attorney General and the Secretary of State that its employee’s injury was due to the State’s negligence; and invited the State to participate in the pending suit against the Railroad. The State ignored the Railroad’s invitation to participate in the suit or in the ultimate settlement.

Railroad gave the State advance notice of the proposed settlement, and eventually paid its injured employee $14,000 in settlement of the Circuit Court action. Railroad then filed this claim against the State for indemnification.

During the course of the three separate hearings in this court, at the close of the Railroad’s evidence, pursuant to §64(5) of the Civil Practice Act, the State moved for judgment in its favor and dismissal of the suit.

The State argued in its motion that is was entitled to judgment under one of two alternative theories:

(1) Since the evidence submitted by Railroad at the hearing all tended to prove that the State was negligent, and since the Railroad judicially admitted its own negligence by making a substantial settlement in the suit brought against it by its employee, the State could be in no worse position than that of a joint tort-feasor. As such, the State argued, it is not liable, under the general rule and the common law principle that there is no right to indemnity between joint tort-feasors.

(2) If the Railroad were not in fact guilty of any negligence, as it seems to contend, then it acted only out of generosity in settling the suit filed against it by its injured employee, and, in effect, made a gift to its employee of. $14,000.

We denied respondent’s motion to dismiss, at the close of claimant’s evidence, for several apparent reasons. First, the State did not concede its own negligence except for the purpose of advancing the argument in theory (1) of its motion. Since we felt that the outcome of this case may depend on the proof of facts concerning the State’s negligence, respondent should proceed to adduce evidence in support of its defense on that issue.

Secondly, this court recognizes the well-established exceptions to the rule against contribution between joint tort-feasors. I.L.P. Contributions §5. One such exception, applicable here, is found in the cases where a third person [here allegedly, the State] caused a liability for the employer under the strict terms of the Federal Employers’ Liability Act (Supra). F.E.L.A. is a unique statute governing the liability of railroads for injuries sustained by railroad employees in the course of their work. It is somewhat similar to a workmen’s compensation act. It is described by the U. S. Supreme Court in Sinkler v. Missouri Pacific R. Co., 353 U.S. 326 at page 329 as ". . . an avowed departure from the rules of common law . . . a response to the special needs of railroad workers”.

As the Railroad contends here, a company operating under the F.E.L.A., may be "guilty of only passive technical negligence” while the active and primary negligence is that of another. This rule is well stated by Justice Schwartz in Gulf, Mobile & Ohio R. Co. v. Arthur Dixon Transfer Co., 1951, 343 Ill.App. 148. Paragraph 4 of the syllabus gives the gist of this case as follows:

"[Indemnity — complaint by railroad for amount paid to its employee injured by transfer company.] Complaint by railroad company to recover from transfer company moneys paid in settlement of switchman’s claim for injuries sustained during switching movement when he was caught between boxcar and transfer company’s motor truck parked close to railroad tracks stated a cause of action, when understood as alleging that railroad company was guilty only of passive technical negligence and that the active and primary negligence was that of transfer company in placing its truck where it was a danger to employees of railroad company.”

In a more recent common law indemnity case, Sleck v. Butler Brothers, 1964, 53 Ill.App. 2d 7, the court restated the Illinois law of common law indemnity.

In the Sleek case, involving a breach of the "Structural Work Act” (Ill.Rev.Stat. Ch. 48, §§60-69) the court said at page 15:

"A party who is legally responsible but not actively at fault may obtain contribution from the party who is actively at fault. In situations where a party is found guilty of common law negligence, the party may be found guilty of only passive negligence and therefore entitled to contribution from the active tort-feasor. Blaszak v. Union Tank Car Co., 37 Ill. App. 2d 12, 184 NE 2d 808 (1962). In situations where a party is charged with a violation of the Structural Work Act, he may seek contribution on the basis that his violation was passive, whereas another was guilty of an active violation of the act.”

Significantly, in view of the claimant’s allegations in the case at bar, the court further stated in Sleck at page 15:

"The fact that the principal case was settled and a consent judgment entered reflecting that settlement does not affect the third-party plaintiffs’ right to seek contribution, whether the damages were sought for the violation of a statutory duty, as in the Sack case, or were sought for the violation of a common law duty, as in Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148, 98 NE 2d 783 (1951).

This court has also tacitly recognized the right of a railroad-employer to reimbursement for sums paid to an injured employee where the injury resulted from the active negligence of the State. Quilty v. State of Illinois (1961) 24 C.C.R. 78, involved a claim for injuries to an employee of the Chicago, Rock Island and Pacific Railroad Company. The injuries were sustained when the employee was working in his employer’s yard at Blue Island, and was struck in the head by a large block of cement. At the time of the injury, the State was repairing a bridge which passed over the railroad yard where the employee was working. Air hammers were being used in the repair work, the vibrations loosened the concrete, and caused it to fall in the railroad yard below. Although the railroad-employer had paid certain medical bills of the injured employee, we permitted the employee to recover the damages because, as we said at page 80, "no subrogation claim was made by the railroad company

The case at bar differs from Quilty (Supra) in that the employee here elected to proceed against his employer, the Railroad, for the latter’s breach of a statutory duty under the Federal Employers’ Liability Act. In Quilty, the employee proceeded against the State which was, in that case, admittedly the active tort-feasor. However, the method of procedure elected by the employee should not affect the rights of his employer to seek indemnity from the State, if the latter is found to be guilty of the negligence which caused the employee’s injury.

So this case boils down to the questions of fact. To establish its claim for indemnity from the State, the Railroad must prove by the preponderence of the evidence that the injury to its employee, Harvey Geiger, was primarily caused by the negligence of the State.

The evidence is entirely circumstantial. There was no. eyewitness to the injury of Harvey Geiger, the Railroad’s employee. Geiger didn’t know what hit him. He was dazed and temporarily unconscious by the blow to his head. He was told, after he got out of the hospital, that it was a board that hit him.

It appears from the evidence, that the board which hit Geiger was a large sign, painted on plywood %" thick and 4' x 4' square, advertising a friendly church. The sign read,

"Welcome to Tinley Park CHURCH of CHRIST A Friendly Church”

This friendly church was located some 10 miles from the place of Geiger’s injury. At some time before the State commenced the repair work on its bridge, and it was stipulated that "somewhere along the line,” the church’s sign had been posted for advertising purposes. No witness could remember just where it had been posted. We think it is reasonable to infer that the church sign had been posted somewhere on the State’s overpass. The State’s construction foreman, William Raymond Hinshaw, remembered noticing the sign when he inspected the bridge and the area two weeks before the repair work started. However, Hinshaw said that the sign was gone when he came back to start the job, and that he never saw the sign again after that day, two weeks before the work commenced.

As job foreman, Hinshaw was at the work site every day while the repair work was in progress. The work commenced on August 3, and was completed on September 28. Geiger was injured on November 15, some 48 days after the State’s work was finished, all of its equipment removed, and the work area cleaned up.

Railroad contends, that the church sign had been used by the State as a part of a cement form underneath the bridge; that, after the form was taken down, the sign was left on top of a pier from whence it became dislodged by the high wind on the night of the accident, fell or blew down, and struck Geiger on the side of his head.

The Railroad called two witnesses who said they saw the sign used by the State as a part of a cement form underneath the bridge in the area where Geiger was injured. Forrest Bennett, Railroad’s yardmaster, said he could see the sign in use as a cement form every day from his work position on the high stand. Bennett was obviously confused, however, when he said that the first time he saw the sign used as a form was about two weeks before Geiger was hurt. As previously noted, the State’s repair job was finished and the cement forms removed six weeks before Geiger’s injury.

Bennett also said he saw the sign up there after it was no longer being used as a cement form; that he saw it laying down on the pier between two abutments, and that he had noticed it there for some period of time before Geiger was hurt.

Railroad’s foreman, John Montsvil, confirmed Bennett’s testimony as to seeing the sign used as a form, and later lying on the ledge of the pier. He said, "I saw it on the ledge, that is for sure.” He described the sign as lying on the pier "at an angle with concrete chippings all over the place”.

Both of Railroad’s witnesses said they knew that the wind blows extra-ordinarily strong under the bridge, and that there was an unusually strong wind on the night of Geiger’s injury. It couldn’t be called a tornado, but the wind was too strong for a man to stand upon a railroad car.

At this point, it seems to the court that these two supervisory employees of the Railroad have admitted that they had knowledge of a dangerous condition, and did nothing about it. They saw the sign lying in a precarious position on top of a pier; knew the propensity for strong winds in the area; and should have known that the sign could blow off and fall on persons below. The least that such prudent men should have done, would be to notify the State to remove alleged dangerous sign. These supervisory employees are presumed to know that the Federal Employers’ Liability Act required the Railroad to provide its employees with a reasonably safe place to work. Yet, according to their testimony, the State had left the sign on top of the pier when they finished their work six weeks before Geiger’s injury. Thus, the Railroad had six weeks notice of this alleged dangerous condition and did nothing about it.

This tends to weaken Railroad’s argument, that its negligence was only passive and technical, while the State’s negligence was active and primary. Railroad states that its negligence consisted only of its failure to "discover” and "correct” a dangerous condition created by the State. Railroad’s evidence shows that it had not failed to discover the alleged dangerous condition. It seems obvious that failure to correct an undiscovered and unknown dangerous condition suggests less guilt of negligence than failure to take any remedial measures after discovering a dangerous condition, regardless of who created it.

Before pursuing this reasoning to a conclusion, that the Railroad and the State were in pari delicto, or weighing their relative delinquencies which may have contributed to Geiger’s injury, we are obliged to consider the State’s evidence which completely contradicts the testimony of Railroad’s witnesses on the essential facts concerning the State’s alleged negligence.

Testifying for the State was its highway maintenance supervisor, Kenneth DeYoung, and its construction foreman in charge of the repair work on the bridge, William Raymond Hinshaw. Both men were on the job every day and inspected all work at the job site every working day during the forty-four day period required to complete the job. Neither of these men ever saw the church sign while the work was in progress, or during the clean-up afterwards. Each of them saw the sign only once. Hinshaw saw it hanging somewhere on the premises two weeks before the work started, but never saw it again after that day. DeYoung never saw it at all until several days after the accident when he went to the Railroad office to examine it at Railroad’s request.

Both DeYoung and Hinshaw are positive that the sign was not used as part of a cement form. They said that all plywood used for forms is either new wood or used forms that have been cleaned. They also said that the plywood used is always oiled so the cement will not stick to it. There is no evidence that the church sign had been oiled on either side.

DeYoung and Hinshaw were equally positive that no sign was left on top of any pier. They had personally inspected the tops of the piers from ladders and scaffolds. Hinshaw described the procedure for cleaning off the top of the piers where the work was performed. He said they use air hose to blow off mud and dirt.

Hinshaw said he called two men from the Railroad by the name of Smith and Drake, and they went over the bridge with him and inspected it before the State moved the lights and barricades from the top of the bridge. He said they had to O.K. the job before he could move out. The inspection of the piers with the two railroad men was a visual inspection from the ground, but we note that this is the same position from which Railroad’s witness, Mr. Montsvil claims he saw the sign at an angle on top of the pier. It was not noticed by the Railroad men, Smith and Drake.

For that matter, the Railroad’s injured employee, Harvey Geiger, never saw the sign before his accident. He was a yard foreman who worked under and around the bridge every day. Geiger testified that he never saw the sign until after he was hit. He did not see the sign used as a cement form nor lying on top of pier. We felt that Geiger’s testimony was more favorable to the State than to the Railroad.

Altogether, there were four other witnesses who testified as to the essential facts. Two were employed, by and testified for the Railroad. Two were employed by, and testified for the State. All gave equally credible testimony, producing a direct conflict in evidence which we find was evenly balanced. Under these circumstances, we must hold that the claimant has not proved its case by a preponderance of the evidence, nor, in other words, by the greater weight of the evidence. I.L.P. Evidence §345.

As we said in Boelkow v. State, 24 C.C.R. 47, "Where there is a direct conflict in evidence, which is evenly balanced, claimant has not met his burden of proof”. This rule applies to the case at bar.

This claim must be and is hereby denied.


text:
    (No. 5969
    Clarence Harrington, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 8, 1974.

    Medlin, Zimmer & South, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This case comes before this Court for consideration on the joint motion of the parties to waive hearing, inasmuch, as the facts are not in dispute and the departmental report attached to the Joint Motion to Waive Hearing established the correct amount of the claim to be $450.42, and both parties agree to the accuracy of this figure. The question to be decided being one of application of the law as set forth in the statutes and rules in effect at the time, the parties, in conference, having waived the filing of briefs.

This case arose as a result of the claimant, Clarence Harrington, having terminated his employment on July 31, 1968, with the Department of Transportation, then known as the Department of Public Works & Buildings, Division of Highways, and immediately going to work full time for Southern Illinois University. The question arose when the Department of Public Works & Buildings refused to pay the claimant his accumulated vacation pay because of the fact that the Department felt that the employee could not appear on two State payrolls at the same time. It was the Department’s position, that the Southern Illinois University is an agency of the State of Illinois and the claimant would be carried as an employee of the Department of Public Works & Buildings during the period of time for which he was being paid vacation, which period coincided with his employment at Southern Illinois University.

Their contention, that the Southern Illinois University is an agency of the State for purposes of determining whether or not the claimant was still employed by the State of Illinois, appears to be correct. According to People ex rel. Redman v. Board of Trustees, 283 Ill. 494, in speaking of the University, the Court states:

"It has no employees. Its employees are employees of the State.”

This quotation was cited with approval in People v. Barrett, 382, Ill. 321, at 340. A full reading of these cases leaves no doubt that the University of Illinois and Southern Illinois University are agencies of the State insofar, as the employees are concerned, and that their employees are State employees. It is also true, that under present statutory law, Ch. 127, Par. 150 (a), there would be no problem in that the intent of the legislature is clearly set forth and the payment could be made. However, at the time of the accrual of this claim, there was no such expression by the legislature and we must look to the pay plans or Department of Personnel Rules in effect at the time.

In the rules of the Department of Personnel, effective November 1, 1967, we find the following at Sec. 3-290:

"SALARY IN LIEU OF VACATION: No salary payment shall be made in lieu of vacation not taken except on termination of employment, in which case the effective date of termination is not extended by reason of said salary payment.”

Other sections of the Rules worthy of consideration are Sec. 2-410 and 2-430 as follows:

"2-410. INTERAGENCY TRANSFER: An employee may be transferred to a position in the same class, or to a position involving similar classifications, duties, responsibilities and salary range, in another agency, with the approval of both agencies, the director, and with the consent of the employee.”
"2-430. RIGHT OF TRANSFERRED EMPLOYEES: A transferred employee shall retain his status, and shall lose no vacation rights, sick leave or other benefits, nor shall such transfer affect his seniority rights or interrupt his continuous service. A transferred employee shall have transferred to the appropriate promotional eligibility list applicable to the organizational unit and work locality of his new position, his name and current grades resulting from promotional examinations.”
It is possibly significant that the claimant in his complaint, paragraph 1 states:

"that on or about July 31, 1968, claimant resigned his position as a janitor with the Carbondale District Office of the Division of Highways, after giving due notice.”

Paragraph 2:

"That after said date claimant went to work for Southern Illinois University.”

Also, in the letter from the Department of Public Works & Buildings, dated March 26, 1971, we find the following:

"Mr. Harrington’s monthly salary at the time of his resignation from the Division of Highways was $517.”

It is significant to note, that neither the claimant nor the claimant’s former employer (the Department of Public Works & Buildings) considered the change to be a transfer. Inasmuch, as neither the claimant nor the Department of Public Works & Buildings has made any allegations or brought forth any evidence with reference to the prior approval of the director or the prior approval of the agencies involved, it would appear the position taken by both the employee and the Department is correct in referring to the change of employment as a resignation from one agency and a hiring by the other, rather than a transfer.

Had the legal effect of the change of employment been interpreted as a transfer, it would appear from the Rules that the vacation should be recognized by the University inasmuch as the employee would carry that benefit with him to his new employment. However, it appears that the proper interpretation would be, that the employee merely resigned from the Department of Public Works & Buildings, rather than having transferred from that Department to the University. It would therefore seem to be appropriate that the problem be considered as a problem involving a resignation. Once it has been determined to resolve the problem in this manner, Section 3-290 of the Department of Personnel Rules effective at the time becomes significant when it states that in case of resignation the effective date of termination is not extended by reason of a salary payment for earned vacation. The question before the court, then, appears to resolve itself to whether or not the employee was in fact on two payrolls simultaneously. If the lump sum payment does not extend the date of termination as per Sec. 3.290, then there would have been no overlapping employment had the Department of Public Works & Buildings paid the claimant his lump sum vacation pay.

WE THEREFORE hold that the employee would not have been on two State payrolls at the same time and claimant is hereby awarded the sum of $450.42, FOUR HUNDRED FIFTY AND 40/100 DOLLARS.


text:
    (No. 6994
    The First National Bank of Belleville, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 8, 1974.

    The First National Bank of Belleville, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-2
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    Herbert L. Lantz, Jr., State’s Attorney for Claimant.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the claimant, County of Randolph, and the respondent, State of Illinois, and the Court being fully advised in the premises, finds that this case arises pursuant to Illinois Revised Statutes, 1947, Chapter 65, paragraphs 37, 38, and 39, being:

"An Act to provide for the imbursement (reimbursement) of counties within the State of Illinois for expenses, costs and fees incurred in habeas corpus proceedings in the courts of such counties, involving non residents of such counties who may be confined in State penal or charitable institutions.”

and that claimant is entitled to reimbursement of expenses, costs and fees as follows:

A. 15 habeas corpus filing fees at $25 $ 375.00

B. 95 habeas corpus filing fees at $30 2,850.00

C. 42 State’s Attorney’s fees at $20 840.00

D. 110 library fees at $1 110.00

E. 42 Sheriff’s service fees plus mileage 510.80

TOTAL $4,685.80

IT IS HEREBY ORDERED that the parties’ presence at a hearing and the filing of briefs is waived, and in pursuance of the statutes of the State of Illinois, as set out above, and based on claimant’s complaint with attached Bill of Particulars, as revised by the parties and agreed and stipulated thereto, an award is hereby entered for claimant in the amount of $4,685.80 (FOUR THOUSAND SIX HUNDRED EIGHTY-FIVE DOLLARS AND EIGHTY CENTS).


text:
    (No. 74-CC-625
    Rhona J. Kincaid, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed August 8, 1974.

    Rhona J. Kincaid, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-683
    James S. Dillion, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    James S. Dillion, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-685
    Peter Baker and Son Co., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 8, 1974.

    Peter Baker and Son Co., Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-703
    Nathan & Clementene Brown, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 8, 1974.

    Nathan and Clementene Brown, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-710
    Thomas Schmidt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    Thomas Schmidt, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-728
    William C. Gunther, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    William C. Gunther, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-823
    Walthill Transportation Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    Walthill Transportation Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-825
    William F. Windler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

      William F. Windler, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-832
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Illinois State Police, Respondent.

      Opinion filed August 8, 1974.

    D. K. McIntosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-845
    Kewaunee Scientific Equipment Corporation, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 8, 1974.

    Kewaunee Scientific Equipment Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-882
    Torriente D. Guinart, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    Torriente D. Guinart, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-13
    Stuckeys, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    Stuckeys, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-18
    Olivetti Corporation of America, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-51
    Archie F. Gathard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 8, 1974.

    Archie F. Gathard, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-262
    Maurice Elmore, Claimant, vs. State of Illinois, Office of Superintendent of Public Instruction, Respondent.

      Opinion filed August 14, 1974.

    Maurice Elmore, Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-65
    Loretta Purcell, Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    Loretta Purcell, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-70
    D. Sharon Osborne, Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    D. Sharon Osborne, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-92
    188 Randolph Building Corporation, Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    188 Randolph Building Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-94
    Margaret H. Eldredge, Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    Margaret H. Eldredge, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-95
    Mary E. O’Connor, Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    Mary E. O’connor, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-96
    Newsletters Incorporated, Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    Newsletters Incorporated, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-103
    Stivers Lifesavers, Inc., Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    Stivers Lifesavers, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-105
    Chicago Press Corporation, Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    Chicago Press Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-130
    Central Office Equipment Co., Claimant, vs. State of Illinois, Health Care Licensure Commission, Respondent.

      Opinion filed August 14, 1974.

    Central Office Equipment Co., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.