Hughr . Ashmore v. The Board of Governor^ of State Colleges et al.

This is a cause of action brought by, Hugh R. Ashmore

as Administrator of the Estate of James C. Ashmore,

deceased, for damages for the wrongful death of James C.

Ashmore.

On October 26, 1967, James C. Ashmore, then 22 years

of age, was a student at Western Illinois University,

Macomb, Illinois. About 2:OO p.m. on October 26, 1967,

James C. Ashmore reported for instructions at the begin

ning swimming class conducted by the University. James

C. Ashmore, with ten other members of the class, was in

structed to swim three lengths of the swimming pool, each

length being approximately 75 feet. In attempting to follow

such instructions, James C. Ashmore entered the pool, and

began to swim about 2:15 p.m. At approximately 2:45 p.m.

he was found at the bottom of the pool, and shortly

thereafter was pronounced dead.

Pursuant to a joint stipulation of the parties herein, the

investigation report of the Western Illinois University’s

Security Office was submitted into evidence as the joint

exhibit of claimant and respondent. It was further [*126]

I

stipulated by the parties herein that such report shall con

stitute the evidence on the question of liability.

At the time of the incident there were present at the pool, James C. Ashmore, his ten fellow class members, the instructor, a lifeguard, and three members of the water polo team.

The following constitutes pertinent portions of the investigative report:

“At 2:lO p.ni. attendance \vas taken by Paul Hutinger. the instructor. and his attendance book indicated that the Subject \vas present , . . total attendiuicc for the class numbered eleven.

The instructor stated that after the class attendance \vas taken w\-cral general items were discussed, inclnding the skills learned at the last class scwion and items to be covered for this period. The class was instructed to sivini tllrc~o lengths of the pool (75’ 1” each length) starting at the shallow or east end. antl the). were to folloLv each other at intenals of five yards starting in lane I’pon

f i \ x b .

reaching the west or deep end, they were to move over to their left into lanc six. and swim back to the shallorr end . . . The instructor stationed himself at thc. shallow end by lanes five antl six, \vhile a guard. Patrick Iloud, \vas standing on the deck at the south side of the pool rip tmvard the deep end.

The class consisted of advanced and beginner s\vimmers. The Suhjrct \viis classified as a beginner along \r.ith Ila\~iclHohnes. .\like Hughes, Keith Ihrtlo\\-. and John Fritz . . .

It \vas David Holmes, of the beginner group. \rho had the last knorvn \x,rh;il contact with the Subject. According to Holmes. after the instructor g a \ ~dircv tions, the students moved over to lane five. and commenced s\vimming at allproximately 215 p.m. Holmes stated that the Snhject and he \\-ere the last t\vo members of the class to start slvirnming. Holmes recounted that the Subject and he had a short discussion at this pnint as to who should go first. It \vas agrcwl that. since the Subject \vas already in position. he should lead off. \vhich hv did. Holmes indicated that the Subject do\^ in and initial]!. s\vam rapid>,. ;iltnost catching the swimmer in front of him. However. before Holmes do\.e in h(*noticed that the Subject appeared to be struggling. and \vas definitely haling tlifficulty. Holmes did not think the Subject’s difficulty Lvarranted calling to the iiistriictor, so he dove in. and. since he also \vas a beginner. turned his full attention to hi\ 0u.n swimming. After Holmes left the ~)ool,he did not remember to check for thc, Subject throughout the renlainder of the class . . .

. . . The instructor then nw\ed to !he north side of the pool for t l king instructions at approximatcl\.,225 p . in . It \vas at this time according to anothc>r student, Keith Bartlo\r.. that Hartlotr- actrtall!. coiinted the group at the di, i i i q w s - sion, since it appeared smaller thaii usual. Also. he \\-as ciirious to see ho\v cwwl!- divided the groups \\ere that the guard had put thein in. He countc~tlfi\-c<tiitlvnt\ in each gronp. inchitling hiniself.

[*127] 127 ~

“The students were given a few minutes of diving instructions by the guard, Patrick Doud, and \vere watched individually by the instructor and Doud, as the students singularly attempted the skill. At no time did two students dive in together. They waited for each member to return before the next swimmer proceeded. The students then tried their skills, one at a time off the low diving board on the same side of the pool, The class was dismissed at 2:40 p.m. \Vithin a short time (less than two minutes) after the diving session, a student, Douglas Dirks, shouted to Doud that there was someone in the water. The Subject was located toward the south side of the pool, near lane five at the 10’level, near the bottom of the pool . . . .”

The record contains no explanation as to why the instructor and the lifeguard failed to see the deceased struggle and go down. He apparently sank from sight within seconds after he entered the pool, and w7as not missed by the instructor or the lifeguard at any time during the balance of the class, a period of about thirty minutes, even though the instructor was allegedly grading each student individually on his swimming skills. His absence n7as not noticed when the class moved to the other side of the pool for individual diving instruction. Only after the class was dismissed did a student notice the deceased, James C. Ashmore, lying at the bottom of the pool.

It is the opinion of this Court that the negligence of respondent was the proximate cause of the death of James C. Ashmore. No evidence was introduced which tended to show that James C. Ashmore was guilty of any contributory negligence.

An award is hereby made to Hugh R. Ashmore, Administrator of the Estate of James C. Ashmore, deceased, in the amount of $12,000.00.

(So. 5529-Claim denied.) RICHARD MIAGONER, d/b/a \\IAGONER’SMOTOMMA,Claimant, vs.

STATE OF ILLINOIS, Respondent.

Opinion filed February 18, 1971.

J. H. M’EINER, Attorney for Claimant.

[*128] WILLIAM J. SCOTT, Attorney General; LEE D. MARTIN, Assistant Attorney General, for Respondent.

NEcLrcENcE-issuance of auto title. Where Secretary of State acted I)iirsiimt to statute in issuing a certificate of title, it is the opinion of the court that the Legislature did not intend to compensate persons for any loss they I I I ~ I ) ' have sustained by reason of their relying upon such certificate of title.

DOVE, J. I

This is a cause of action brought by Richard Wagoner, 1 d/b/a Wagoner's Motorama, for damages allegedly resulting from the negligence of the State of Illinois in issuing a Certificate of Title to a certain 1967 Ford Galaxie 500 automobile. Claimant alleges that he is the owner of a used car business in the City of Springfield, Illinois, and that on February 15, 1967, he purchased a 1967 Ford Galaxie 500, registered number 7W55C114223, from one Ronald M. Harris for $2,100.00. Claimant alleges that at the time of purchase he was a bona fide purchaser for value, relying upon a Certificate of Title issued by the State of Illinois to Ronald M. Harris. On February 20, 1968, claimant was advised by the Illinois State Police that the 1967 Ford Galaxie 500 had been stolen from the Avis Rent-A-Car System, and claimant subsequently paid the sum of $1,750.00 to Avis Rent-A-Car System, the legal owner of the automobile.

The claimant alleges negligence on the part of the respondent in placing in the possession of Ronald M. Harris a Certificate of Title upon which he relied, and seeks damages in the amount of $1,750.00.

The only evidence introduced on behalf of respondent was a departmental report consisting of a letter from the Secretary of State to the Attorney General of the State of Illinois, dated July 17, 1968, in which it appears that when Mr. Harris made his application for a Certificate of Title for the 1967 Ford Galaxie 500, and submitted a fee, he surrendered certain documents including a purported bill [*129] of sale for the 1967 Ford, by Lendrum & Hartman Ltd. to a Richard M. Harris of Canterbury, Kent, England. The departmental report neither admits nor denies any negligence.

In the case of Rice vs. Galkowski, 333 Ill. App. 652, the Appellate Court held that mere possession of an automobile with Certificate of Title thereto was not sufficient indicia of the possessor’s ownership so as to be relied upon by one subsequently purchasing the automobile from such possessor.

It is the opinion of this Court that the claimant has failed to prove by a preponderance of the evidence that the respondent, State of Illinois, was in fact negligent or careless in issuing a Certificate of Title to the 1967 Ford Galaxie 500 to Ronald M. Harris, and that such negligence - was the proximate cause of claimant’s loss. It appears from the evidence in this case that the Secretary of State acted properly and pursuant to statute in issuing the Certificate of Title, based on the documents presented to the Secretary by Harris.

The Uniform Motor Vehicle Anti-Theft Act provides for the issuance of Certificates of Title for motor vehicles and regulates various matters pertaining to such Certificates. If a Certificate of Title to an automobile is mistakenly issued by the Secretary of State, it is the opinion of this Court that the Legislature did not intend that the State of Illinois compensate persons for any loss they may have sustained by reason of their relying upon such Certificate of Title.

For the foregoing reasons claimant’s claim is hereby denied.

[*130] I

I

(So. 36l’i-Claimant atlarded $88.00.)

LOUIS J. FOLEY, Claimant, vs. STATE OF ILLINOIS, DEPARTMENT OF I

CHILDREN AND FAMILY SERVICES, Respondent. I

Opinion filed February 18, 1971.

LOUIS J. FOLEY, Claimant, pro se.

WILLIAM J . SCOTT, Attorney General; LEE D. M ARTIN, Assistant Attorney General, for Respondent.

CosTRAcrs-hpsed appropriation. \\’hen the appropriation froln \diic.h a claim should ha\,e been paid has lapsed. the Court will enter an a\varc\ for tlw

, amount due claimant.

DOVE J.

(So. 3706-Claimant awarded %209.95.)

D. G. HUELSKOETTER, M.D., Claimant, vs. STATE OF I LLINOIS,

DEPARTMENT OF CHILDREN AND F AMILY SERVICES, Respondent.

Opinion filed Febrtrary 18, 1971.

D. G . HUELSKOETTER, M.D., Claimant, pro se.

WILLIAM J . SCOTT, Attorney General; LEE D. MARTIN, Assistant Attorney General, for Respondent.

CowRAcrs-hpsed appropriation. \Yhen the appropriation frhni \vhich a claim should have been paid has lapsed, the Court \vi11 enter an a\varcl for the amount due claimant.

PERLIN, C. J.

(So. 5761-Clairnant awarded $140.00.) GARFIELD PARK MOVING AND STORAGE COMPANY, Claimant, vs.

STATE OF ILLINOIS, DEPARTMENT OF PUBLIC AID, Respondent.

Opinion filed February 18, 1971.

WARREN KRINSKY,Attorney for Claimant.

WILLIAM J . SCOTT, Attorney General; BRUCE J . FINNE, Assistant Attorney General, for Respondent.

[*131] I 131

CoNTRACTS-kap)Sed appro))riation. \\.hen the appropriation f r on i \vhich il

claim should have been paid has lapsed. the Conrt \vi11 enter an a\vartl for the

amount due claimant.

DOVE, J.

~

( So . 5764-Claimant a\varded $113.00.)

K ATY CORPORATION, Claimant, vs. STATE OF ILLINOIS, DEPARTMENT

OF PUBLIC A ID , Respondent.

Opinion fikd Febrtrary 18, 1971.

CHARLES K RAUT , Attorney for Claimant.

WILLIAM J. SCOTT, Attorney General; SAUL R. \\.EXLER,

Assistant Attorney General, for Respondent.

Cosmacrs-lupscd appropriation. \\.hen the appropriatio!~from \vhich :I

claim should have been paid has lapsed, the Court \vi11 enter an avartl for thv

amount due claimant.

DOVE, J.

(So. 5797-Clairnant awarded W3.50.)

TRANSWORLD \'AN LINES, INC.,. a/k/a MAJFSTICWAREHOUSES, I NC .,

Claimant, vs. STATE OF ILLINOIS, Respondent.

Opinion filed Febrtrary 18, 1971.

TRANSWORLD \'AN LINES, INC., a/k/a MAJESTIC

\Z!AREHOUSES,

INC., Claimant, pro se.

WILLIAM J. SCOTT, Attorney General; SAUL R. WEXLER,

Assistant Attorney General, for Respondent.

DAsrAcEs-stipu~atioti. \\.here claimant and respondent stipulate to facts

and damages, an award \vi11 he entered accordingly.

HOLDERMAN, J

On April 1, 1970, Transworld Van Lines, Inc., a/k/a

Majestic Warehouses, Inc., filed a claim against the State of

Illinois for services rendered the Cook County Department

of Public Aid in the amount of $719.00.

[*132] The record consists of the following:

1. Complaint

2. Joint Stipulation ,

It appears that claimant did furnish services to the State of Illinois in the amount of $443.50.

An award is, therefore, made to claimant, Transworld Van Lines, Inc., a/k/a Majestic Warehouses, Inc., in the amount of $443.50.