Ronda R. Weber v. Illinois

On September 1, 1939, Herbert Weber, employed as an attendant at the Manteno State Hospital, contracted typhoid fever in the course of his employment. In the original complaint, filed in this case by Herbert Weber in his lifetime, it was alleged that as a result of the typhoid fever he had been unable to carry on his usual and customary duties, and had suffered a severe kidney infection. He sought an award for medical and hospital services, total and permanent disability, and life pension.

Herbert Weber died November 7 , 1946, .and thereafter, by leave of court, an amended complaint was filed by the claimant, Ronda R. Weber, as widow of Herbert Weber, deceased, alleging that she was married to Her[*265],

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bert Weber on June 30, 1932 and that decedent left surviving, as his only heirs, Ronda R. Weber, his widow, and Geoffrey Lewis .Weber, his son, who was born on January 31,1944. The amended complaint alleged that the death was the direct and proximate result of the typhoid fever contracted while Weber was employed by the respondent.

When the illness was contracted, decedent and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the illness and claim for compensation were made within the time provided by the act. A typhoid fever epidemic existed at the Manteno State Hospital from July 10, 1939 to December 10, 1939. Typhoid fever contracted during this epidemic constitutes an accidental injury which is compensable under the Workmen’s Compensation Act. ( d d e vs. State, 13 C.C.R. 1). , Decedent’s annual earnings for the year next preceding his <illness were $672.00, making an average. weekly wage of $12.92. Since he had one child under sixteen years of age living at the time of his death,.his compensation rate is the minimum of $11.00 per week. The illness having occurred subsequent to July 1, 1939, this must be increased I O % , making a compensation rate of $12.10. Decedent was totally incapacitated from September 1, 1939, to November 6, 1939, a period of nine and two-sevenths weeks. During that time he received for . non-productive work the sum of $127.40, which must be deducted from any award entered in this case.

Herbert Weber, testifying on his own behalf, at the original hearing, stated that on August 29, 1939, he reported to Dr. Spinka, Staff Physician at the Manteno State Hospital, that he was suffering from an abdominal . disorder; that Dr. Spinka advisea him to go to his room, [*266] and that if he did not feel better by morning, and needed medical or hospital services, to secure them wherever available, Because the hospital at the institution was already filled with typhoid fever patients. The following day he went to the Coleman Clinic at Canton, Illinois, where Dr. Bennett sent him to the Graham Hospital.

Weber remained there from August 30th to O'ctober 6th, 1939. The total charges paid to the hospital for that period amounted to $128.70.

Weber further testified that on February 27, 1940, he had a relapse, and returned to the Graham Hospital where he was found to be a typhoid carrier. He remained at the hospital from February 27th, to March 31st, 1940, and paid total hospital charges for that period of $122.94.

Because his condition did not improve, he was subsequently taken to St. Luke's Hospital in Chicago for the removal of one kidney. He remained there from November 8th to December 6th, 1942, at a total expense of $471.54. From December 23, 1942, to January 17, 1943, Weber was again treated at the Graham Hospital, at Canton, at a total expense of $209.10, and from January 30, 1946, until March 10, 1946, at a total expense of $416.00. ' Weber also testified that he had paid the following medical expenses : Dr. E. P. Coleman $226.50 ; Dr. Harry Culver, $285.00; Dr. Daniel K. Hur, $54.00, or a total of $565.50. Additional expenses incurred by Weber just prior to his death were as follows : Graham Hospital .............................................. $34.48 Prescrip'tions and Medicines. ................................... 12.00 Medical services, Coleman Clinic.. .............................. 54.00 Decedent further testified that for a period of four years after his original illness, except during the several periods of hospitdization, he worked as a guard at the [*267] Elwood Ordnance Plant a t a s d a r y at $34.00 per week, plus over-time pay. He stated, however, that he had been unable to do any work since October, 1945. . Dr. David A. Bennett, testifying on behalf of Weber, - stated that he examined Weber on August 30, 1939, and found that he had typhoid fever ; that he treated him at the Graham Hospital from Xugust, 30, to October 6 ; that on October 24, 1939, Weber was found to be negative of typhoid fever, but that he again saw Weber on February 15, 1940, and Weber was then running pus cells’in his urine. An intravenous pyelogram was done at that time, and on March lst, 1940, a blood test showed positive typhoid.

Dr. Bennett testified that on May 20, 1940, a specimen of urine showed typhoid bacilli present, a condition which remained throughout 1940, and for which Weber was continuously treated. Tests made on November lst, 1941, November 8th, 1941, and November 17,1941, showed Weber still a typhoid carrier in the urine. On November 18,1941, and on February 15,1942, a cystoscopy was done at the hospital. Typhoid was still present in the urinary tract.

Dr. Bennett testified that in December, 1942, Weber’s right kidney had become abscessed, the infection in the left kidney having infehted the right kidney, developed stones, and so damaged the right kidney as to necessitate its removal. On January 30, ‘1946, Dr. Bennett found stones in the left kidney, one of which was impacted in the left ureter, causing uremia. The stone was removed at that time,”but other stones still remained in the left kidny, which had only a limited function.

Dr. Bennett staied, at that time, that the original typhoid infection caused Weber to .become a typhoid carrier; that the resulting infection in the kidney would be [*268] the cause of his ultimate death; that the typhoid had so infected the remaining kidney tha,t Weber’s life expectancy was definitely lessened. Dr. Bennett stated that claimant was then totally incapacitated, and that his con, dition was permanent. From the proof submitted on hearing, following the death of Herbert Weber, it appears that his death was the direct result of the original typhoid fever infection, being caused by uremia, as Dr. Bennett predicted.

Claimant is therefore entitled to an award on account of the death of Herbert Weber, under Section 7a of the Workmen’s Compensation Act of this state, in the amount of $3,038.00, less the sum of $127.40 paid to decedent for non-productive.work, or the sum of $2,910.60. \ Marguerite Corso was employed to take and transcribe the evidence at the hearings before Commissioner Jenkins. Charges in the amount of $57.60 were incurred for these services, which charges are fair, reasonable, and customary.

An award is therefore entered on account of medical, hospital A d nursing services in the sum of $2,014.26 payable forthwith as follows : Graham Hospital, Canton, Illinois. ............................ $911.22 St. Luke’s Hospital, Chicago, Ill.. .............................. 471.54 Dr. E. P. Coleman ............................................ 226.50 Dr. Harry Culver ............................................. 285.00 Dr. Daniel K. Hur ............................................ 54.00 Coleman Clinic, Canton, 111.. .................................. 54.00 Ronda R. Weber, reimbursement for’ purchasing prescriptions and medicines .............................................. 12.00 An award is entered in favor of Marguerite Corso in the amount of $57.60, payable forthwith.

An award is entered in favor of Ronda R. Weber, widow of Herbert Weber in the amount of $2,910.60 to be paid to her as follows:

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$ 612.71, which had accrued under the terms of an award made to the decedent immediately prior to his death on account. of permanent disability, and which is payable forthwith; 326.70, which has accrued since the death, and which is payable forthwith ; 1,971.19, which is payable in weekly installments of $12.10 per week, beginning on the 16th day of May, 1947 for a period of 162 weeks, with an additional final payment of $10.99. c All future payments being subject to the terms And conditions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is spelcifically reserved for the entry of such further orders as may from time to time be necessary.

This award is subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees. ” (No. 3 9 1 8 4 l a i m a n t awarded $3,705.75.)

GOLDBLATT BROS., I NC., A CORPORATION, claimant us. STATE OF ILLINOIS, Respondent.

Opnion filed May IS, 1947.

BERNARD ’ ROSENCRANZ, BERNARD B ROWN, Attorneys for claimant.

GEORGE F. BARRETT, Attorney General, WM. L. MORGAN, Assistant Attorney General, of counsel, for respondent.

ILLI~OIS WATERWAY AcT-gtate liable for damages to persons in the constructiorr, mainteaamce w- operation thereof and ats appurtenances.

Under Section 23 of the Illinois Waterway Act (Chap. 19, Section 101, Smith-Hurd Annotated Statutes,) the State is liable for damages to persons caused by the oonstruction, maintenance or operation of the Illinois Waterway and its appurtenances, and where a person sustains accidental injuries by reason of the sudden raising of a bridge without notice by a bridge tender-an employee of the State, the proximate cause of the injury was the negligent act or omission of the State’s employee at and before the happening of the accident, and is compensable. . -10 [*270] W O R K M E N ’ S COMPENSATION A c M here .injured ernplogee and his employer-and the &ate and its employee are operating under and within the proviszons of thb Act-and the proximlaite cause of injury was the neglagent act of omzssion of the State’s employee-a right of action agnznst the Stale for recoveru of damages sicstaanecl exists in favov of employer of a m j w e d enzplogee. Section 29 of the Workmen’s Compensation Act provides that where an injury or death for which compensation is payable by the employer under the Act was caused under circumstances creating a legal liability for damages in some person other thanJthe employers, and the other person having elected to be bound by the Act, and is being bound thereby under Section ( 3 ) of the Act, then the right of employee to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under the Act by reason of such injury or death ,of such employee.

DAMRON, J. This is a claim of Goldblatt Bros., Iiic., for an award in the sum of $3,705.75.

The claim is based on Section 29 of the Workmen’s Compensation Act which provides that where an injury or death for which bompensation is payable by the employer under the Workmen’s Compensation Act was caused under circumstances creating a legal liability for damages in some person other than the, employers, such other person having also-elected to be bound by the Act, or being bound thereby under Section (3) of the Act, then the right of the employee to releover against such other person shall be transferrea to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compeFsation payable under the Act by reason of such injury or death of such employee.

The complaint alleges that claimant’s employee, Ira Messersmith, on the 3rd day of September 1943, was injured while walking across the Cass Street Bridge of the [*271] Illinois Waterway, at Joliet, Illinois, and through the , negligent act of the bridge tender in raising said bridge without due notiice, caused Ira Messersmith to slide down the western slope of the raised bridge, fracturing his left hip and injuring his right knee.

At the hearing before the Commissioner, the claimant introduced a certified copy of an applicatioi for adjustment of claim which was filed with the Industrial Commission by the said I r a Messersmith on the 5th day of #December1944, against Goldblatt Bros., Inc., alleging that he sustained an accidental injury on the 3rd day of September 1943, arising out of and in the course of his employment. On the 23rd day of February 1945, an arbitrator awarded compensation at 'the rate of $11.16 per week for a period of 416 weeks and one week at $1.04 and thereafter a pension during his lifetime, as provided in Paragraph ( f ) Section 8 of the Workmen's Compensation Act, as amended. No petition for review by the In* dustrial Commission was ever filed by either Messersmith or Goldblatt Bros., Inc., butt on the 3rd day of March, 1945, Messersmith settled his claim under the award with this claimant for $2,000.00. A settlement contract and petition for lump sum in the sum of $2,000.00 was filed with the Industrial Commission, and on the 14th day of March 1945, the settlement contract was approved, . the petition for the lump sum was granted and the sum of money was paid to said I r a Messersmith, by this claimant.

The claimant contends that the respondent should reimburse it for all money expended, because it says that its employee was injured through the negligent act of the bridge tender, who was an employee of the State of Illinois, on the date of the owurrence.

It is the contention of the respondent that as no [*1] - 872 liability or responsibility rested upon the State of Illinois for the negligent or tortuous acts of its officers, agents, or employees at the time of the events upon which said I claim is based, the claimant has not stated a cause of . action and therefore its claim should be dismissed.

Section ,23 of the Illinois Waterway Act (Chap. 19, Section 101 Smith-Hurd Annotated Statutes) makes provision for the liability of the State for all damages ( a ) to real estate or personal property within or without the radius or zone of the Illinois Waterway and for all damages. (b) to persons caused by the construction, maintenance or operation of the Illinois Waterway and its appurtenances.

The respondent in resisting this claim, while admitting that the above provision in the Waterway Act makes provision for the liability of the State for damages to real estate, personal property, and to persons, denies that this A~ctjhas any application to the case in question because it says the Cass Street Bridge in Joliet, over the Illinois Waterway, is a part of Illinois SBI Rt.

No. 22 and that the construction of said bridge and the maintenance thereof was for the purpose of carrying said route over the Illinois Deep Waterway and was a part of the construction by the State, of a state-wide system of durable hard surface roads upon the public highways of Illinois, and therefore the State cannot be bound nor is liable to another for the negligent acts of its officers,. agents, b r employees in the performance of their governmental functions in the Highway Department.

This Court will take judicial notice that sometime prior to the year 1932, the respondent commenced the construction of the Illinois Waterway through the City of Joliet and was engaged in such construction work during all the year of 1932 and for some time thereafter. Said waterway in passing through the City of Joliet runs in a [*273] northerly and southerly direction and in general, following the bed of the’DesPlaines River and the Illinois and Michigan Canal and occupies the space thereto which was ocicupied by said River and Canal.

Cass Street in said City of Joliet, extends in an , easterly and westerly direction and intersects the Illinois Waterway at right angles. Prior to the, time of the construction of the Illinois Waterway, said Desqlaines River and said Illinois and Michigan Canal wefe crossed by’ a public bridge approximately level and at grade on Cass . Street.

Respondent commenced the work of demolishing the then existing bridge on Cass Street about.May 1, 1932 and commenced the construction of a new bridge on said street to take the place of the old bridge. The Cass Street bridge and approaches were completed about the 1st day of January 1933. It was so constructed as to provide a clearance thereunder of 16% feet, thereby making the floors of said bridge approximately 18 feet higher at the crown than the floors of the old bridge. Steiw et al VS.

State 8 C.C.R. 251 at 253. This new construction was necessary in order to permit boats and barges travelling . this water route to clear. It was a part and parcel of the specifications of the waterway system. It had no connection with the needs of the Highway Department and al‘though it was under the jurisdiction of the Department of Publilc Works and Buildings (Division of Highways) the layout and construction ,of said bridge was primarily for the accommodation of traffic on the waterway system as aforesaid. So far as the demand for highway purposes was concerned, there is nothing in the record that indicates there was need for the reconstruction of said bridge or the building of an incline approach thereto. It must be admitted that the canal was being reconstructed as a [*274] I part of the Illinois Deep Waterway project and that as a part of such program, it was deemed necessary to elevate the Cass Street Bridge to aid in carrying out the pur. poses of the Deep Waterway.

It is the contention of the respondent that the Cass Street Bridge is a part of the Highway Department and has nothing to do with the Waterway Department and in support of its contention cites Section 84, Paragraph 5 of Chap. 19, Illinois Revised Statutes which defines the powers of the Department of Public Works and Buildings as follows : “84. Department of Public Works and Buildings to control. The construction, maintenance, control and operation of ‘Illinois Waterway’ and its appurtenances shall devolve upon the Department of Public Works and Buildings.”

Respondent argues that since claimant ’s employee was injured as a result of sliding down the bridge toward the west when the bridge was opened for the purpose of being painted, and since the injured man v as found lying on the highway off of the bridge, and since the bridge is no part of the Department of Waterway but belongs to the Highway Department, claimant should not maintain its action and an award should be denied.

If we could agree with respondent that the Cass Street Bridge was not a part of the Illinois Waterway, the motion to deny an award would be sustained. This Court has had many claims filed before it and the decisions rendered consistently adhered to the rule that the State was not liable for the negligence or torts of its officers, agents, or employees under, “An Act creating the Court of Claims and prescribing its powers and duties” approved June 25, 1917. Brookshire vs. State, 14 C.C.R. 134; Sa/nford,vs. State, 1 2 C.C.R. 360. In-Turner et a1 vs.

State, 12 C.C.R. 265 we held the State is not liable for the t [*275] negligence of its officers, agents, or employees in the conduct of a governmeiital function in the absence of a statute making it liable. To the same effect are Hewlett vs. State, 13 C.C.R. 27 and Hallisey vs. State, 14 C.C.R 156.

The Waterway Act specifically provides in Section 23 that if damages are sustained by a person through a negligent act in the construction, maintenance, or operation of the Watefway and its appurtenances, the State shall be liable. It is evident that the Legislature in the enactment of this statute, intended to make an exception to the rule as laid down in the cases above cited.

Upon consideration of the record in this case, we find that the proximate cause of the injury to claimant’s employee was the negligent act of omission of the re‘ spondent’s bridge tender at and before the happening o€ the accident. We further find that said negligent act of respondent’s employee created a legal liability as provided in Section 29 of the Workmen’s Compensation Act, as amended, and at the time of the occurrence, said employee and respondent were operating under the provisions of said Act. s The evidence discloses that claimant has been put to an expense for hospitalization, medical, and its settlement with its employee through the Industrial Commission, of $3,705.75 for which it is entitled to be reimbursed.

An award is therefore entered in ‘favor of Goldblatt Bros., Inc., in the sum of Three Thousand Seven Hundred Five Dollars Seventy-Five Cents ($3,705.75).

D. V. Sheffner, Geneva, Illinois, bas prpented a bill for reporting services in this cause in the sum of $62.00, and A. M. Rothbart, Court Reporting Services, has presented a bill for taking and transcribing certain portions of the testimony in the sum of $22.60.

[*276] The Act creating the Court of Claims of Illinois does not contain a provision authorizing this Court to enter an award for these services in a claim such as this. These claims must therefore be denied.