Matie P. Henderson v. State of Illinois

Claimant, Matie P. Henderson, seeks to recover from respondent under Section 3 of the Workmen’s Occupational Diseases Act because she contracted tuberculosis while employed as an attendant at the Alton State Hospital. That she did contract tuberculosis is conceded, her condition having been diagnosed in 1947.

Claimant commenced work for respondent on January 3, 1944. At that time she was free of tuberculosis.

Three times per week for twenty weeks after her employment commenced she was required to and did attend a one-hour instruction class for newly hired attendants, which class was conducted immediately after her eight [*81] hour working day. Claim;: -it alleges that Ais constituted a violation of Ill. Rev. Stat. 1949, Chap. 48, See. 5, which limits the hours of labor for females in Siate institutions to eight in any one day. We do not think it does, because her regular work was over and her exposure to tuberculosis patients had ceased when she went to class. Furthermore, it is inherent in the construction to be given to such statute that there must be some possible causal connection between the violation of the statute and the injury complained of. In this case, the chain of causation was lacking in vital links.

Her classroom work did not expose her to tuberculosis, and according to Claimant’s Exhibit 2-C, chest X-rays taken of her in November, 1944, February, August and November, 1945, and February and May, 1946, showed no tuberculosis. Thus the proof in this case negatives conclusively any conclusion that claimant contracted tuberculosis from the violation of the eight-hour law if there was such a violation.

Section 3 of the Workmen’s Occupational Diseases Act further provides that an “action for damage for injury to the health shall be commenced within three (3) years of the last exposure to the hazards of the disease. . . . ” If a claimant chooses to rely on a statutory violation, the next logical step in the construction of Section 3 is that the action must be commenced within three (3) years of the last date upon which the statute was violated. This claimant has failed to do. Her instruction classes ended not later than May, 1945, yet her complaint herein was filed February 15, 1949.

Claimant testified that she wore a mask and gown at all times in the tuberculosis ward and that the ventilation in such ward was very good.

Claimant was off work for some time and was paid [*82] by respondent at a reduced rate for her time off in accordance with a departmental policy. She returned to work in August, 1948, and her tuberculosis is now considered arrested and is no longer active.

Under the previous decisions of this Court, claimant has failed to establish her claim that she acquired tuberculosis as a result of negligence of respondent, and her claim must be and is hereby denied. FVheeler v. State, 12 C.C.R. 254; Norrnavz v. State, 16 C.C.R. 128; Domke v.

State, 12 C.C.R. 452; Odle v. State, 16 C.C.R. 183; McNutt v. State, 17 C.C.R. 18.

Hugo Antonacci, Springfield, Illinois, was employed to take and transcribe the testimony before Commissioner Summers. Charges in the amount of $56.70 were incurred, which charges are reasonable and customary. An award is therefore entered in favor of Hugo Antonacci for such amount.

(No. 4 2 0 1 4 l aim denied.)

E DWARD P. N EIWEEM AND CALVERT FIRE I NSURANCE COMPANY, Claimants, ws. STATE OF ILLINOIS, Respondent.

Opinion pJed Januarg IO, 1950.

H ENRY L. ARNOLD, Attorney for Claimants.

I V A N A. EUIOTT, Attorney General; C. ARTHUR NEBEL,Assistant Attorney General, for Respondent.

ILLINOIS NATIONAL GumD-where inember will not be aonsidered State empboyee so as to bind State for injuries to others by m m b e r s of.

Where a Chaplain on active duty with the Illinois National Guard, engaged in Summer training in Camp McCoy, Wisconsin, while driving a jeep which collided with an automobile driven by the complainant causing injuries, it was held that he was an agent of the United States of America and that the State was not liable for such injuries.

ILLINOIS NATION& G u m m h on members are agents of the State or agents of the Umited States. Under 32 U. S. C. Sec. 20 officers of the National Guard while not on active duty are officers and employees of the United States, but not of the State. While functioning for and [*83] within the State, they are agents of the State. (Citing Ill. Rev. Stat. 1949, Chap. 129, Section 1-210, 32 U. S. C., Sections 1-195 are paramount by virtue of the Constitution of the United States, Article 1, Section 8, paragraph 16.)

LANSDEN, J. Edward P. Neiweem has filed his complaint in this Court seeking to recover for personal injuries and property damage allegedly sustained as result of a collision near Lacrosse, Wisconsin, between a motor vehicle driven by him and a jeep driven by a Captain Baird, a chaplain on active duty with the Illinois National Guard, who on. the date of the accident, July 29, 1948, was engaged in summer training maneuvers at Camp McCoy, Wisconsin, with the 33rd Artillery Division of the Illinois National Guard.

Calvert Fire Insurance Company, a Corporation, joins in Neiweem's complaint as a claimant by reason of a subrogation agreement between it -and Neiweem, the company having paid to Neiweem the sum of $472.65 for damages to Neiweem's vehicle as result of said collision.

Respondent has filed a motion to dismiss the complaint and the action on the ground that this Court has no jurisdiction of this type of claim.

Respondent relies on Myers v. State, 17 C.C.R. 55, to sustain its contention that this Court is without jurisdiction. That case held. that a member of the Illinois Reserve Militia on active duty was not an employee of the State of Illinois and therefore the State was not responsible for his negligence, and the Court further construed the following language of Section 8 C of the Court of Claims Act "the negligence of its officers, agents, and employees in the course of their employment" as being limited to the master and servant relationship. A vigorous dissenting opinion was written by Judge Eckert in the Myers case, and we agree with Judge Eckert and do [*84] hereby overrule the holding in the Myers case that a member of the Illinois Reserve Militia on active duty is not an officer, agent and employee of the State.

A person in the armed forces of the United States is an employee of the Government, 28 U.S.C., Sections 1346 (b), 2671; Brooks v. U. S., 337 U. S. 49, 93 L. Ed. 884. The interpretation that we have given to Section 8 C makes the position of this Court, consistent with the Federal Tort Claims Act, 28, U.S.C., Sections 1346 (b), 2671-2680.

But does the overruling of portions of the Myers case benefit claimants in this case? Our inquiry must necessarily be directed now to the question of whether Captain Baird, under the facts alleged in the complaint, was an agent of the State of Illinois or the United States of America. We think and do so hold that Captain Baird, under the facts alleged in the complaint, was not an agent of the State of Illinois but on the other hand was an agent of the United States of America.

In reaching this conclusion, we have examined in detail the provisions of the statutes of Illinois relating to State Militia, Ill. Rev. Stat. 1949, Chap. 129, Sections 1-210, and we have compared that statute with the laws of the United States relating to the National Guard, 32 U.S.C., Sections 1-195.

By reason of Article 1, Section 8, Paragraph 16, of the Constitution of the United States, which reads as follows :

“To provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress,” the laws of the United States relating to the National Guard, 32 U.S.C., Section 1 et seq., are paramount. [*85]

For a State Militia to be subject to the Federal National Guard Statutes, it must have been federally recognized, 32 U.S.C., Sections 4, 4a and 4b. That the Illinois National Guard has been federally recognized is in this case certain by reason of the fact that summer’training maneuvers were being conducted at Camp McCoy, Wis

P

consin.

Officers and enlisted men of the National Guard take a dual oath to obey the orders of the President of the United States and the Governor of the particular state, 32 U.S.C., Sections 112, 123, and this dual oath indicates ‘ that at certain times members of a State National Guard unit may be agents of the United States of America and at other times may be agents of a particular state. In fact, 32 U.S.C., Section 20, when compared with Section 194 leads to that conclusion. Said Section 20 reads as follows : “Officers of the National Guard of the United States, while’not on active duty, shall not, by reason solely of their appointments, oaths, commissions, or status as such, or any duties or functions performed or pay or allowances received.as such, be held or deemed to be officers or employees of the United States, or persons holding any office of trust or profit or discharging any official function under or in connection with any department of the Government of the United States.”

Said Section 194 reads as follows: “No State or Territory or Puerto Rico or the Canal Zone shall maintain troops in time of peace other than as authorized in accordance with the organization prescribed under this title: Provided, That nothing contained in this title shall be construed as limiting the rights of the States and Territories and Puerto Rico and the Canal Zone in the use of the National Guard within their respective borders in time of peace: Provided further, That nothing contained in this title shall prevent the organization and maintenance of State or Territorial police or constabulary.”

Since by Section 194 no state may order its National Guard used outside of its borders in time of peace, the Illinois National Guard while on summer training maneu[*86]vers at Camp McCoy, Wisconsin, in the summer of 1948 could only be under Federal jurisdiction and its members were, therefore, agents of the United States of America. July 29, 1948, for purposes of the National Guard, was a time of peace. 32 U.S.C., Section 164e; Cong. Res. July 25, 1947, Chap. 327, Section 3, 61 Stat. 451.

In view of the foregoing, the motion of respondent ’ to dismiss the complaint and the action is hereby sustained and the action is dismissed.