Henjamin H. Turner v. State of Illinois

In this case claimant seeks to recover $8.00 drivers license fee which he paid the State of Illinois.

In 1969, claimant applied for a renewal of his drivers license, paid the prescribed fee of $8.00, but failed to pass the examination due to his eyesight. The Secretary of State notified him by letter of his failure to pass the examination. Thereafter, claimant wrote a letter to the Secretary of State stating that he did not intend to apply again for a renewal of his license and requested a refund of the $8.00 he paid. The Secretary of State wrote claimant declining to refund the license fee.

The sole question is whether or not claimant should be refunded the $8.00 license fee paid by him at the time he applied for the renewal of his license.

The argument of claimant is that the fee had to be paid at the time of the application and therefore was not voluntary; that since the State refused to renew his license, [*324]

3.24 the fee should be refunded to him because the $8.00 fee I could not, under the law, be charged solely for taking of the examination; and that inasmuch as claimant never received j

~ his license, it would be unjust for the State to retain the fee.

It appears that there is some merit to the claimant’s position in that he never received what he applied for when he paid the $8.00 license fee. Nevertheless, the rule has been firmly established by many cases, that where a license fee is voluntarily paid to a governmental body, it cannot be recovered in the absence of a statute authorizing such a recovery. See the case of The L. F . Corporation vs. State of Illinois,22 C.C.R.486. In that case, a fee in the amount of $6,750.00 for a racing license was not returned to the applicant after the applicant had abandoned his application.

‘1’0 change this’long established principle of law in order to assist the claimant here could result in confusion inthe rilles. There is no provision in the Illinois Vehicle Code which authorizes the Secretary of State or any other person to refund a drivers license application fee in case the license is refused or the application withdrawn. There are provisions, however, for refunding fees received when an application for a certificate of title to a motor vehicle or when an application for registration of a motor vehicle is refused. Ch. 95!& Sec. :3-824, IlLKevStat., 1969, provitlvs that any such fcc shall be returned to the applicant whcn the application for title or for registration is refused or withdrawn. The Legislature has not adopted such provisions in connection with the fees collected for drivcv-s 1’icenses.

The claim is denied.

[*325] ( No . 5%32-Claim denied.) CHARLES EDWARD FERGUSON,

Claimant, os. STATE OF ILLINOIS,

Respondent.

Opinion filed December 18, 1969.

Petition of Clnimant for Rehearing denied February 14, 1972.

HENNING AND CROFT, Attorney for Claimant.

WILLIAM G. C LARK, Attorney General; MORTON L. ZASLAVSKY, Assistant Attorney General, for Respondent.

I-IicHwAus-dut!/ to maintain. Where claimant stepped into holv in 1)avt’- ment, and whew he kne~vof had condition of roadway in area, but did not look down into strert beforc, strlq)ing off the curb, claimant was not in exerciscb o f d r i e care.

SAME-SUWIC.Heq,ondent owes no duty to pedestrian to keep the street in a safe condition. whrrc sidrwalks are provided; and the claimant who stcppd into hole in strect coriltl not recover.

BOOKWALTER, J .

Charles Edward Ferguson has filed his complaint in this Court seeking to recover damages against respondent, charging respondent with certain acts of negligence in its failure to maintain a street, which was under its control.

From the evidence introduced, it appears that claimant, on October 30, 1965, at or about 6:45 a.m., parked his car at or near 3867 Elston Avenue, Chicago, Illinois, and entered the Elston Launderette; that some time later claimant left the launderette, and at the aforesaid location, while stepping from the sidewalk and curb onto the street, stepped into a hole in the asphalt pavement in the street. Claimant testified that the weather at the time was cloudy and hazy. He further testified that the hole in the pavement ~ 7 a sapproximately one foot from the curb.

On cross examination, claimant testified that he was well acquainted with the area in question; that the street along the block in question was cracked, and that he knew of the bad condition of the street. He also testified that he [*326] did not look down at the street when he stepped from the curb, even though he knew that the street and pavement was in a bad condition.

Joseph Ciborowski, a witness on behalf of claimant, testified that he is the owner of the Elston Launderette on Elston Avenue. He testified as to the photographs of the street in question, and testified that the hole depicted in claimant’s exhibits and photographs, existed for at least four or five months prior to October 30, 1965, the date of the accident in question.

In order for -claimant to recover, he must prove by a preponderance of the evidence that respondent was negligent, that this negligence was the proximate cause of claimant’s injury, and that he was, at the time of the accident, exercising due care and caution for his own safety. It is the respondent’s contention that claimant was a pedestrian walking on a roadway in violation of Chap. 95 1/2, Sec. 175, 111.Rev.Stat.; “Where sidewalks are provided, it is unlawfiil for any pedestrian to walk along and upon an adjacent roadway except at a crosswalk,” and that respondent owes no duty to such pedestrian to keep the street in a safe condition, and, therefore, could not be guilty of negligence.

It is unnecessary for this court to consider respondent’s contention, since we find from the facts in this case the claimant was not in the exercise of due care.

Respondent is not an insurer of all accidents which happen to persons using its roads and it is incumbent upon the claimant to prove by a preponderance of the evidence that he was exercising due care and caution for his own safety at the time of the accident. Claimant has failed to discharge this burden. He knew of the condition of the roadway in the area where the accident occurred, but did not look down into the street before stepping off the curb, [*327] or in any other way exercise care for his own safety. Had he looked down, he could have avoided stepping into the hole. 1 Thriege vs. State of ZZZinois, 24 C.C.R. 470.

In view of the foregoing, the claini must be denied.

( No . 5525-Claimaiit awarded $25,000.00.) WESTCHESTER FIRE INSURANCE COMPANY, A Corporation, Subrogee of Jesse G . Shepherd, Claimant, os. STATE OF ILLINOIS,

Respondent.

Opinion filed November 9, 1971.

Petition of ReS)JOndent for Rehearing denied Februury 17, 1972.

J O H N P. W ARDROPE, Attorney for Claimant.

WILLIAM J. SCOTT, Attorney General; Z EAMORE A. ADER, Special Assistant Attorney General, for Respondent.

NEGLIGENCE- res i p ~ aloquitur. Whcn a thing which has caused an injury is shown to be tinder the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonahlc> evidence, in the absence of an explanation by the parties charged, that it arosc from want of due care.

PER CURIAM.

On February 4,1968, there was an explosion and fire in the National Guard Armory in Aurora, Illinois, which resulted in the destruction of the Armory. As a result of the explosion and fire, an adjoining building owned by a certain Jesse C . Shepherd was damaged. Claimant, Westchester Fire Insurance Company, paid the owner of the adjoining building the sun1 of $25,124.55,and brings this claiin to recover its payment as the subrogee of the owner of thc adjoining building.

1)onald Shepherd, a qualified and licensed architect, submitted a thirty-seven page itemization concerning neccssarjr repairs to the building, and stated that the cost of repair, replacement and service required to repair the dam[*328]age done to claimant’s building amounted to $39,067.89. The Assistant Claims Manager of the Westchester Fire Insurance Company, Charles J. Sniericky, testified that an agreement was made with the owner of the building whereby the claimant paid its assured, Jesse C. Shepherd, the sum of $25,124.55.

It is the contention of the claimant that the respondent, through its agents, members of the Illinois National Guard, was negligent in the operation, control and maintenance of the Armory, more specifically, the heating apparatus in the basement known as the “North Boiler”, and that it was through this negligence that the fire was caused, resulting in damage to the Shepherd Building. Count One of the claimant’s complaint alleges specific negligence in the operation of the “North Boiler” and Count Two alleges general negligence under the doctrine of res ipsa loquitur.

Testimony taken at the hearing of this matter established that the Armory was under exclusive control of the respondent and that the “North Boiler” was in operation at the time of the explosion and fire. On December 23,1967, a gas regulator valve on the “North Boiler” was replaced for the reason that the boiler had not been burning with the proper flame. Captain Leo Stoecker, of the Illinois National Guard, testified that there had been no complaint regarding the “North Boiler” after that time. Neither claimant nor respondent introduced any expert witness who might have examined the “North Boiler” after the fire.

Lt. Ronald Miller of the Aurora Fire Department, testified on behalf of the claimant that he had investigated the fire and that in his opinion the fire had started in the basement boiler area and was consistent with a gas explosion. Arson was ruled out as a cause.

[*329] Another opinion was introduced in the form of a report

by James F. Lahey, Deputy State Fire Marshal for the State

of Illinois. In his written opinion, the most probable source

of ignition was the Boiler Room and further, in his opinion,

it was stated that the fire was accidental and due to a

malfunction of one of the boilers.

In the opinion of this court, the doctrine of res ipsa

loquitur is properly invoked by the claimant. In the case of

Feldman vs.Chicago Railways Co., 289 Ill. 25,34., the court

stated: “When a thing which has caused an injury is shown

to be under the management of the party charged with

negligence and the accident is such as in the ordinary course

of things will not happen if those who have such manage

ment use proper care, the accident itself affords reasonable

evidence, in the absence of an explanation by the parties

charged, that it arose from want of proper care.” The claim

ant in this case has proven through a sufficient amount of

circumstantial evidence that the fire started in the boiler

area, which was under the control of the respondent, and

that the probable cause of the fire was a gas explosion. Such

circumstantial evidence, along with the fact that fires of this

nature do not occur in the absence of someone’s negligence

give rise to the presumption of negligence on the part of the

respondent. (Metz vs. Central lllinois Electric and Gas, 32

111. 2d 446).

The presumption which arises is subject to rebuttal by

the respondent and may be overcome by explanation of the

occurrence of the fire, consistent with due care on the

respondent’s part. (Edmonds vs. Heil, 333 111. A p p . 497).

Respondent did show that the boiler was repaired some

time before the fire occurred, but failed to offer evidence

as to its condition just prior to and at the time of the explo

sion and fire in question; and furthermore, failed to have

the boiler inspected after the fire, although it was in [*330] respondent’s possession for four to five months. Respondent has failed to offer sufficient evidence to rebut the presumption of negligence.

Respondent argues that it might be just as reasonably be inferred that the fire was started by a bomb or that some other form of arson took place. The possibility of arson was ruled out both by Lt. Ronald Miller of the Aurora Fire Department and James F. Lahey, Deputy State Fire Marshal. There was no proof of contributory negligence on the part of the claimant.

In the opinion of this court, respondent is liable for the damages inflicted on the property of Jesse C. Shepherd and the court awards damages to the Westchester Fire Insurance Company, subrogee and claimant in this matter, in the amount of $25,000.00.

( No . 5570-Claimant awarded $882.34.)

N. A. MASTERS, Claimant, vs. STATE OF ILLINOIS, Respondent.

Opinion filed February 17, 1972.

ORWINH. PUGH, Attorney for Claimant.

WILLIAM J. SCOTT, Attorney General; WILLIAM E. WEBBER, Assistant Attorney General, for Respondent.

NEGLIGENCE-joint tort-feasors. A party damaged by the actions of joint tort-feasors may sue either or both tort-feasors and may collect in full from either.

BURKS,J.

This is a claim for property damage based on the following facts which are not in dispute.

On Thursday, August 10, 1967, a sign crew from the District #9 office of the Division of Highways at Carbondale proceeded to the southwest corner of the intersection of Illinois Avenue (U. S. Route 51) and Main Street (Illinois [*331] Route 13) in Carbondale to install signs for a ternporary one-way couple of Illinois Avenue and University Avenue.

The crew, operating a truck-mounted power digger, was drilling holes for the erection of a sign when the drill punctured a four-inch water service line under the pavement. The ensuing flow of escaping water flooded claimant’s place of business, a tavern known as the Rathskeller.

The time of the puncture of the water line was approximately 9:15 a.m. The Carbondale City Water Department was called immediately to repair the break, the Division of Highways being without authority to shut off the water supply or to repair the punctured service line. The flow of water was stopped at approximately 3:OO a.m. on the following day. The water was escaping for 18 hours, a portion of which time it was flowing through the public establishment of the claimant.

It would appear that there may have been undue delay on the part of the City in repairing the water main. Assuming that there was neglect involved in this delay, we are faced with a situation where we have joint tort-feasors. It has been long recognized in Illinois that a party damaged by the actions of joint tort-feasors may sue either or both tort-feasors and may collect in full from either.

The property damage sustained by the claimant was obviously caused by the water which was allowed to escape following the drilling operation of the respondent, and the latter acknowledges liability.

The only remaining question is the amount of damage actually inflicted by the water. According to claimant’s testimony on page 6 of his deposition, the floor in the Rathskeller was installed in 1955. This means that the tile floor had been subjected to use by the public for a period of 12 years prior to the water damage. Claimant, by letter [*332] dated August 3, 1970, attached to respondent’s Brief and Argument, agrees that the claim should be reduced from

I

$1,254.78 to $882.34. Respondent does not contest the other , damages alleged by claimant and agrees that the actual damages to the claimant’s property amount to $882.34.

IT IS HEREBY ORDERED that claimant be awarded damages in the amount of $882.34.

Pursuant to Ch. 27, Sec. 439.24, Ill. Re\.. Stat., 1971, the Court directs immediate payment of this claim from the Court of Claims Fund. (Fund So . 572.)

( So . 60Z3-Clainiant a\vartletl S‘i20.13. ) ST. ALEXIUSH OSPITAL , A Corporation, Claimant, us. STATE OF

ILLISOIS, DEPARTMENT OF CHILDRES AND FAXIILY

S ERVICES , Respon

dent.

Opinion filed Fdirciur!l 17. 2972.

M.C. ELDEN,Attorney for Claimant.

\VILLIASI J. SCOTT, Attorney General; S AUL R . \\.EXLER, Assistant Attorney General, for Respondent.

Cos-rRxTs-hpsed uppropriotiofi. \\.hen the appropriation frotn which a claim should have been paid has Inp~etl.thr Court \vi11 enter an a\wrtl tor the amount due claimant.

P E R L I K , C.J.

( So . 61 IS-Claiinant m\-ardcd S3.8%3.50.) (:,uniEs .ILOSZO, d/b/a OVERS, Claimant, 1;s. STATE

CARMES’S

OF ILLISOIS. I)EPART\IEST OF PUBLIC A I D , Respondent.

Opiniori filed Febr.rrclr.!l 17. 1.92. I

EDWIS11. RAFFEL,Attornej. for Claimant.

\\.ILLIAN J. SCOTT, A ttornej. General; S AUL R . \\-EXLER, Assistant Attornej- Ccwcral. for Respondent.

[*333] CosmAcrs-lcipsed npproprintion. \\-hen the al)prc!priation froin \i.hich ;I

!

claim should have been paid has lal)setl. thr Court \\-ill enter an a\\ arc1 for the

amount due claimant.

PERLIN,

C.J.

( So . 62%-Clai1n:1nt a\varded 81.89131.)

PARKHURST, APPIER, l l A R O L F , ASSOCI?lTES, claimant, G S . STATE OF

ILLINOIS, DEPARTMENT OF \IESTAL H EALTH, Respondent.

Opiriioii fi/cd Fe/irrrnr!/ 17. 197-3.

APPIER,J~AROLF,

PARKHURST, ASSOCIATES, Claimant, pro

se.

\VILLIAM J. SCOTT, Attorne), General; \ \ + ILLIAM E.

\\'EBBER,Assistant Attorney General, for Respondent.

C O X T R A C T S - - ~approprintion.

O~S~ \\.hen thc appr~ipriationfrom \vhich il

claim should ha\.e been paid has lapsed. the Court \\-ill enter an award for the

amount due claimant.

PERLIS,C.J.

-~

( So . 6163-Clnin1ant a \ w r t l d 82.767.7'7.)

CRAWFORD, ~ I U R P H YASD TILLY. Isc.. Claimant, 1 ; s . STATE OF

ILLISOIS,I~EPARTXIEST OF PUBLIC \\-ORKS A N D B UILDINGS,

Respondent.

Opitiioit f i / d Febrtror!/ I i . 1 9 2 .

AND TILLY,

CRAWFORD, JIURPHY INC.,Claimant, pro se.

~VILLIAXIJ. SCOTT, Attorne)? General; \\.ILLIAME.

W'EBBER, Assistant Attorne). General, for Respondent.

I

C O S T R A C T - - ~ ~nlilirol,,.iotioii.

~,.W~ \\'hm the al)l)rol,riation f r o l n \\-hich a

claim should h a w been paid has 1a~)secl.tlir Court tt.iI1 enter an award for thc.

amount due claimant.

PERLIN,