Harold R. Brown and Alice I. Brown v. State of Illinois

HAROLD R. BROWN AND ALICE I. BROWN, Claimants, V.S. STATE OF ILLINOIS, Respondent.

Opinion filed November 12, 1947.

RICHOLSON, WILHELMAND DAVIES,for Claimants.

GEORGE I?. BARRETT, Attorney General; WILLIAM L. Monam, Assistant ‘Attorney General, for Respondent.

DEPARTMENT OF PUB1,IC WORKS AND BUILDINGSdaWbageS r€Stbltillg from excessive water in channel ,and overflow. Claimant must present his claim within two years from time claim accrued for damages to his crop and land pursuant to Section 22 of “An Act to create the Court of Claims.” Said act does not contain a saving clause in reference to claims that accrued prior to such enactment.

SLmm-statute creating liaBalaty or ca?Lse of action. Such liability or cause of action is necessarily derived from the statute itself. The provisions with respect to time of filing such claims is a conditi,on of liability, and cannot be maintained unless there is a full compliance with all the prescribed statutory conditions.

DAMRON, J. -

Harold R. Brown and Alice I. Brown filed this’complaint on February 19,”1947.

[*80] The complaint alleges that they are the owiiers of a one hundred thirty acre farm in Gruiidy County immediately adjacent to and south of the Illiilois and Michigan Canal; that they acquired the property in August, 1940.

It is further alleged that many years ago the duties of maintenance, operation and repair of the Canal were transferred from the Canal Commissioners to the Waterway Division of the Department of Public Works and Buildings ; that in violation of its duty the latter Department failed to keep the Canal free of foreign matter whereby for several years since 1940 excessive water accumulated in the channel and overflowed its banks submerging claimants ’ lands, damaging their crops and preventing them from raising crops.

Claimants allege that 2,500 bushels of corn of the value of $3,400.00 were destroyed in 1941; that during the year 1942, 8,000 bushels of the value of $12,000.00 were destroyed; that they were unable to raise crops comprising 8,000 bushels of the respective value of $12,000.00 each in the years 1943 and 1944 and that the land was damaged as to its fair cash value to the extent of $150.00 an acre, namely $19,500.00, which damages total $58,900.00.

Harold R. Brown testified that the property mas acquired in 1938; that he paid $35.00 an acre for 106 acres and $40.00 an acre for the other 24 acres. He talked to the Superintendent of the Canal in March, 1942 and several times afterwards and informed him if the gates were not left open in the spring to take care of flood water the farmers would have to handle the gates.

When the gates were not open the water would overflow over his farm. This happened in October, 1941 destroying 2,000 bushels which was 25% of his corn crop. In [*81] February, 1942 the Canal flooded again and the water n7as not 08until June, 1942. Except for 2 acres, no corn was planted that year. The farm was flooded again iu the spring ‘of 1943 when only 10 acres mere planted. In 1944 only 5 or 6 acres were planted producing about 500 bushels. The farm was under production in 1945. The witness also testified as to numerous conversations with Mr. Pitts, the Superintendent, and others about taking care of the gates, and changing the course of Carson - Creek to eliminate excess water flowing into the Canal.

Claimants contend that the evidence discloses without denial that during heavy rainfalls the water goes over the banks of the Canal which has become a shallow basin since the Canal has been abandoned for naxri‘gation purposes and that snch damage is occasioned during heavy rainfall whether the gates are opened or not. It is further contended that the State by abandonnient and neglect has changed the course of the drainage and thereby damaged claimants’ property and deprived them of its use and enjoyment, for which loss they should be compensated by respondent.

The respondent contends that the instant proceedings are barred by reason of the limitation provision of Section 22 of “An Act to create the Court of Claims” (approved July 17, 1945; c k 37, Par. 439.22 Ill. Rev.

Statutes) which reads as follows : “Every claim cognizable by the court and not otherwise soonei barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues two years from the time the disability ceases.”

It appears without controversy from this record that claimants seek an award for alleged damages caused by overflowage during the years 1941, 1942, 1943, and 1944 [*82] 82 ' and that no claim is asserted for any damage either to land or crops for any year subsequent to 1944.

The claim, if cognizable by this court, accrued more than two years prior to the filing of the complaint hcreiii on February 19, 1947.

The former comparable section (See. 10) of the prior enactment creating the Court of Claims (approved .June 25, 1917) and repealed by the present law, afforded a five year period from the time the claim accrued within which it might be filed.

No savings clause was enacted in the present law as to claims that accrued prior to such enactment.

The general rule which holds that statutes of limitation should not be given a retroactive effect, unless it clearly appears that the legislature so intended has no application to the present enactment. The statutory provision under consideration is a condition of liability and not a mere statute of limitation. Where the right of action is one created by statute and the time for filing . the action is a condition of liability, it will not operate retrospectively in the absence of a manifest contrary i r i - tention. Carliqa vs. Peerless Gas Light Co., 283 Ill. 142; Spaiddaag 11s.W h i t e , 173' Ill. 127.

Even though the remedy granted claimants to enforce their rights in this court by the statute may be regarded as creating a liability upon the State, or creating a cause of action, such liability and corresponding right is necessarily derived from the statute itself. The provisions of this enactment with respect to the time for filing such claims is a condition of such liability. The action or claim cannot be maintainecl unless there is a full compliance v i t h all the prescribed statutory conditions precedent. Tiernon Oil Co. \is. State, No. 4011. (Opinion rendered September term, 1947.)

[*83] No department, agency or official of the State can waive the immunities of the State nor does this Court have the authority or power, indirectly or directly, to waive any condition essentid to confer jurisdiction upoii it to adjudicate a claim. The sole authority to do this rests with the legislature.

In the light of these basic and controlling reasons we must hold that claimants are precluded by Section 22 of the Court of Claims Law from maintaining his claim for the alleged damages caused to his property and crops during the years 1941 to 1944, inclusive.

This court, after the expiration of the two year limitation as provided in Section 22 within which .the claim must be filed, is without jurisdiction to consider such claim. Our jurisdiction is clearly limited to the consid’ eration of claims which have accrued within two years prior to the filing of the complaint.

Because of the views above set forth, it will be unnecessary for us to comment further as to the manifest impropriety of the measure of alleged damages aggregating $58,900.00 as asserted by claimants, for the loss of 2,500 bushels of corn in 1941 on the basis of its gross pegged selling price; a potential yield of 8,000 bushels which were never planted for the succeeding years 1942, 1943, 1944 0’; the basis of the same figures, in addition to a depreciation of $150.00 an acre fair cash market value of the land itself, notwithstanding claimants testimony that the value of the land would be $300.00 an acre ($39,000.00) or that they would not accept $250.00 an acre if it were not for the Canal.

The motion of the respondent to dismiss this complaint is allowed.

Complaint dismissed.

[*84] (N O. 40254laimant awarded $4,800.00.)

DELLA CHILDERS, Claimant, vs. STATE OF ILLINOIS, Respondeu t.

O p n h pled November 12, 194Y.

DIXON,DEVINE, B RACKEN AND D IXON , for Claimant.

GEORGE F. BARRETT, Attorney General ; W I ~ J A M L. M ORGAN, Assistant Attorney General, for Respondent.

WORKMEN’S COMPENSAT~ON ACT-pre-ercist‘ang d2sease. Where preexisting disease is aggravated or accelerated, it is compensable. Tznkle~ YS. State, 11 C.C.R., 55; Valier Coal C m p a ) i ? j vs. Iizd. C m . , 399 Illinois, 458. Widow of employee of Department of Public Welfare at Dixon State Hospital, a watchman, who as a result of physical exertion in his course of duty died, may recover under Section 7 , Paragraph A of act.

BERGSTROM, J. Claimant, Della Childers, is the widow of George B. Childers, deceased, x h o was employed by the Department of Public Welfare at the Dixon State Hospital, as a watchman.

The record consists of the Complaint, A4mendmenl to the Complaint, Departmental Report, and Waivers of Brief and Argument by Claimant and Respondent.

On January 4, 1947 Mr. Childers started out in an automobile with some other employees of the Instiiutioii to locate two patients who had escaped, which was a part of his duties as watchman. The night was extremely cold-the temperature being below zero-and while the car was in the northeast part of the town about one-half mile from the Institution, the automobile became stalled ‘in a snow bank. Mr. Childers and the other two employees took turns in shoveling the snow and pushing the car to extricate it, which took about an hour and a half. They then returned to the main office of the In - stitution, and as decedent reached for tlie door latch, he fell over. A doctor was immediately called, and Dr. Belinson and Dr. Kamenetz came in a matter of a few min[*85]utes. Dr. Belinson testified that decedent died from a coronary occlusion; that the physical exertion by decedent in extricating the car and the cold weather were definite contributing factors to his death. Dr. Kamenetz testified to the same effect.

It has been held on numerous occasions that when a person’s pre-existing disease is aggravated or accelerated in the course of his employment and death results therefrom, it is compensable. Finkler v. State, 11 C.C.R. 55 ; Martin v. State, 14 C.C.B. 189 ; Valier Coal Go. v. Industrial Commissioiz, 339 Ill. 458 ; Marsh v. Industrial Conim,issioqz, 386 111. 11; S i w ~ p so i zCo. v. Iwdustrial GOmmission, 337 111. 454; Vimcennes Bridge Go. v. Imdustrial comnzission, 351 111. 444.

At the time of the accident, decedent and respondent were operating under the provisions of the Workmen’s Compensation Act, and notice of the accident and claim for compensation were made within the time provided in the Act,%andwe find that the accident arose out of and ~ in the course of decedent’s employment.

The earnings paid to decedent by respondent for the year previous to his death aggregated $1,531.29. Claimant, therefore, is entitlea to an award under See. 7 ( a ) of the Workmen’s Compensation Act in the amount of $4,000.00. The accident having occurred after July 1, 1945 this must be increased 20% making a total award of $4,800.00. Decedent’s average weekly wage, computed under Section 10 ( a ) of the Act was $29.45, and his compensation rate would be $14.73 per week, which must be increased 20%, making the compensation rate $17.68 per week. Decedent had no children under the age of 16 years dependent upon him for support at the time of his death.

An award is therefore made in favor of claimant, \ [*86] Della Childers, in the amount of$4,800.00, to be paid to her as follows: ‘ $ 795.60, which has accrued is payable forthwith; $4,004.40, payable in weekly installments of $17.68 beginning on November 24, 1947 for a period of 226 weeks, with an additional payment of $8.72.

All future payments being subject to the terms and provisions of the Workmen’s Compensation Act of Illjnois, jurisdiction of this cause is specifically reserved for the entry of such further orders as may from time to time be necessary.

DarlGen Lambert, court reporter, Dixon, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill in the amount of $15.00. The Court finds that the amount charged is fair, reasonable and customary, and that said claim be, and is, hereby allowed.

This award is subject to the approval of the Governor as provided in Section 3 of “ An Act concerning the ’ payment of compelisation awards to State e‘inplopees.