Walter De Vore v. State of Illinois

Claimant, .Walter De Vore, filed his complaint on June 21, 1951, wherein he alleges that on January 28, 1949, while an inmate of the Illinois State Penitentiary at Menard, he was directed to work in the tin shop.

On the particular day in question, he was cutting out handles for tin cups for use in the penitentiary by means of an electrically powered tin shears, whose mechanism was engaged or disengaged by means of a clutch, which was foot-operated. Claimant further alleges that this machine had been known to slip on previous occasions, causing the mechanism of the shears [*107] to become engaged with the power unit without actuation by the operator, and without the control of the operator. While performing his regular duties, the tin shears became engaged with the power unit without control of the claimant by means of the clutch slipping into contact. The third and fourth fingers on claimant’s left hand were sheared off at the first joints thereof, and his hand tendons were maimed and lacerated; and, as a result, claimant was hospitalized for a month.

Claimant seeks $2,500.00 in damages from the respondent, State of Illinois.

The record consists of the complaint, motion of respondent to dismiss, notice to call up the motion of respondent to dismiss, brief of claimant in opposition to the motion of respondent to dismiss, and reply brief of respondent.

Respondent has filed its motion to dismiss the complaint, wherein it alleges that it appears from the face of the complaint that the claim is barred by the statute of limitations, more than two years having elapsed since the injury.

Section 22 of the Court of Claims Act reads as follows : “Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is iiled with the Clerk of the Court within two years after it first accrues, saving to infants, idiots, I lunatics, insane persons and persons under other disability at the time the claim accrues two years from the time the disability ceases.”

This Court held in Mc Elyea vs. State, 7 C.C.R. 69, as follows: “The law of this State gives unto a prisoner serving a sentence in any penal institution the right to sue or to be sued in the Courts of this State during the period of such confinement. A convict does not lose his personal rights because of his imprisonment, although he is deprived by law of certain rights of citizenship.

Therefore, as he possessed said personal rights the claimant was entitled, able and free to exercise them, even though he was confined in the penitentiary.”

[*108] The complaint shows on its face that more than two years had elasped from the date of the alleged injury to the filing of the complaint. Thereforc, under the law, this Court is without jurisdiction to hear and determine the claim for the reason that the statute o€ limitations had run against the claimant.

Having concluded that we are without jurisdiction to hear and determine this claim, it becomes unnecessary to discuss any other questions.

The motion of the Attorney General is allowed.

Com plaint dismissed.

I (No. 4291-Claim denied.)

PETER FULLER, Claimant, us. STATE O F ILLINOIS, Respondent.

Opinion pled November 13, 1951.

POLLOCK AND ENNIS, Attorneys for Claimant.

IVAN A. ELLIOTT, Attorney General; C. ARTHUR NEBEL,Assistant Attorney General, for Respondent.

W ORKMEN ' S O CCUPATIONAL D ISEASES A c v elements of proof necessary to obtain award under. To recover, claimant must establish negligence by showing the State violated (1) a rule or rules of the Industrial Commission made pursuant to the Health and Safety Act; (2) a statute of this State intended for the protection of the health of employees. (Ramsey vs. State, 18 C.C.R. 174.)

SCHUMAN, C. J .

Claimant filed his complaint for damages based on

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the contracting of tuberculosis, while employed at the Illinois Soldiers' and Sailors' Home at Quincy, Illinois.

The complaint charges that claimant contracted tuberculosis by drinking out of the same cup as used by an inmate, Dixon Nlotley, who worked with claimant during the years of 1944 through 1946. The records show that Dixon Motley was transferred to the Veterans Administration Hospital at Excelsior Springs with ac

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[*109] tive tuberculosis on July 9, 1946. Claimant charges the State negligently assigned him to work with an individual known to be suffering from tuberculosis, and negligently provided common drinking facilities for the claimant, and the known tuberculosis patient.

There is no charge in the complaint of a violation of any rule or regulation of the Industrial Commission made pursuant to the Health and Safety Act, or of a violation of a statute of this State intended for the protection of the health of employees. There is no evidence of any violations as above stated.

The evidence fails to show any knowledge on the part of the State that Dixon Motley was tubercular, and that the State knowingly required claimant to drink out of the same container as Motley. The proof shows that claimant was awarded Civil Service payments on the ground that his disease was service connected. However, to recover, claimant must establish negligence by showing that the State violated: (1) a rule, or rules of the Industrial Commission made pursuant to the Health and Safety Act; (2) a statute of this State intended for the protection of the health of employees. (Ramsey vs.

State, 18 C.C.R. 174.)

Neither the complaint, nor the proof establish such negligence, and for this reason the claim must be denied.

Helen Woolley was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $26.00 were in

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curred for these services, which charges are fair, reason' able and customary. An award is, therefore, entered in favor of Helen Woolley in the amount of $26.00, payable forthwith.

[*110] On the basis of the record before us, an award to claimant will have to be denied.