Ined a. Balding v. State of Illinois

Claimant herein seeks payment of 0 ne Hundred FortySeven ($147.00) Dollars damages alleged to have been suffered because of negligence and carelessness of inmates at the Lincoln State School and Colony.

The claimant alleges that in the 24th day of June, 1938 certain of the inmates of said institution were allowed by the managers thereof to be at large to perform farm labor for the institution; that in order to reach the farm land owned by the institution where they were to perform such labor, the inmates passed from the Home premises to such other land through the premises of the claimant; that in going through such lands, the inmates and patients carelessly, negligently, wilfully, and wantonly cut the wires of the division fence at or near the northeast corner of claimant’s premises, leaving a gap of about six feet in width through which about thirty-five head of cattle owned by the Institution entered claimant’s land; that they went across the first field and then through [*129] an open gate into a second field where claimant had hybrid corn, that the cattle ate, trampled and otherwise destroyed three and one-half (31/2) acres of such corn of the alleged value of One Hundred Forty-seven ($147.00) Dollars.

The Attorney General has moved to dismiss the complaint for the reason that the claim for damages is predicated upon alleged liability of respondent for the careless, negligent, wilful, and wanton conduct on the part of inmates of a charitable institution maintained by the State, for which the State cannot be held legally liable.

The motion has been argaed’orally and Counsel for claimant has ably presented his theory and argument to distinguish this case from the prevailing rule that“The State in the conduct of its penal add charitable institutions is engaged in a governmental function, and in the exercise thereof is not responsible for the negligent acts of its servants, agents, or inmates, in the absence of a statute making it so liable.”

Counsel for claimant contends that there is a distinction between the functions of a State or its administrative agencies which are governmental in their character, and those which are proprietary, and that the activity of the State may be in part governmental and in part proprietary; further, that the farm land which was located some distance away from the institution buildings, was owned by the State in its proprietary character ; that in farming said land and in using the labor of its institution inmates therefor, the State was acting in a proprietary and not a governmental character; that the State should therefore be liable for any damages that may have resulted from the negligent acts of its employees, or in this case the institutional inmates, who were being sent out to perform such farming operations. Counsel cites the case of Dr. Johm Hopkins vs. Clernson. Agricultural College of Soudh Carolina, 221 U. S. 636. The College was a State Agricultural Institution, the fee being in the State but the corporation, as equitable owner, being in possession. The College constructed a dyke to protect its land, and in so doing damaged the adjoining property. The College was held responsible, and in connection with said citation, counsel ’ further cites cases at page 243 in Volume 35 L. R. A. (N. S.) wherehhe rule is given, that“Where State institutions of the character here considered are not regarded strictly as agents of the government performing a governmental function, they are generally held not to be immune from suit.” -5 [*130] We have not heretofore nor can we now apply such distinction to the State Penal and Charitable Institutions of the State of Illinois. The care and treatment of such inmates is definitely performed as a governmental function, and while the management of such institutions may see fit to have such inmates engage in various occupations, such activity is recognized as being for the primary purpose of occupying the time of such inmates.

The gravamen of the charge here is not that the State mas or was not engaged, in a proprietary sense, in the operation of farming activities, but that inmates of one of its Charitable Institutions have committed a tort. The fact that they were housed on one part of the institutional premises, and were going to anothcr i’s not material, nor is it material to what work they might be assigned while there. The record does not disclose that such inmates had any right to go on or across claimant’s land. Their acts in cutting his fence in ,order to more freely cross his premises was a tort upon their part for which no redress against the State has ever been provided by our Legislature.

We are therefore confronted with the application of the previously stated rule of Isw that in the absence of a statute making the State liable, there is no legal liability on the part of the State for the acts of inmates of its State Institutions.

There being no legal liability, the Court of Claims mould not have authority to allow an award. In creating the Court of Claims the Legislatiire of Illinois did not create a cause of action nor a right of action in any given case, but merely provided a forum wherein claimants against the State might submit their grievance, and where, if a legal basis for redress was shown to exist, an award might be obtained.

The fact that the Legislature has seen fit to provide such a forum where those who may have a valid claim against the State growing out of contractual and other relations may sue, does not lay the State open to awards being made against it in such Court for the negligent and tortuous acts of its agents, servants or institutional inmates. As stated in the case of Minear vs. State Board of Agriculture, 259 Ill. at P. 559- “Even if such authority (the power to be sued in certain cases) was given, it would cover only actions ordinarily incidental in its operation and would not extend to cause8 of action like the present. There is a distinct difPerence between conferring suability as to debts and other liabilities for which the State’s prison is now liable and extending liability for causes not heretofore recognized.”

[*131] WERCKMAN 131

We are unable to distinguish the case at bar from the above and from the case of Wood vs. State, 9 C. C. R. 501, in which an inmate of the State Hospital at Jacksonville, Illinois, escaped and injured a woman on an adjoining farm.

An award was therein denied for the reasons herein stated.

In the absence of a specific law providing for liability by the State, no liability would accrue under the facts stated in the pending complaint. The motion of the Attorney General is therefore allowed and the complaint dismissed. ’ (yo. 2435-Claim denied.)

Claimant, ws. STATE OF ILLINOIS, Respondent.

ROSE WERCKMAN, Opinzon filed December 8, 1936.

Rehearang danaed November 1, 1939.

E’. K. L EMON, for claimant.

A RTHUR H. SHAY, for intervening petitioner.

O TTO KERNER,Attorney General ; J OHN KASSERMAN,

As

sistant Attorney General, for respondent.

W O RKME N ’ S C O M P E N S A T I O N ACT-only applacable to employees of State e m gaged in extra-haxal-dous enterprases named an. The Workmen’s Compensation Act does not automatically apply to all employees of the State, but only to those engaged in an employment in a department of the State which is engaged in extra-hazardous enterprises named in the Act.

S ~ ~ ~ - D s part me noft Fznance not engaged in extra-hazapdous enterprise under-employee of not wathzn provasaons of. One employed by the State as a Field Auditor and to perform other duties in the Occupational Tax Division of the Department of Finance does not come within the provisions of the Workmen’s Compensation Act, as such department is not engaged in an extrahazardous enterprise.

MR. JUSTICE LINSCOTT

delivered the opinion of the court: Rose Werckman, the administratrix of the estate of John C. Werckman, deceased, filed her Application for Adjustment of Compensation in this court on July 17, 1934, alleging that the deceased, John C. Werckman was employed by the State of Illinois as Field Auditor, and at other duties in the Retailers ’ and Occupational Tax Division of the Department of Finance, and had been so employed since the last week in August in the year 1933; that the offices of the Ritailers’ and Occupational Tax Division were located in what is known as the Public Service Building in the city of Springfield, Illinois, [*132] 132 ~?‘ERCICi\IAN 2). STATE O F ILLINOIS.

and the deceased made his headquarters there while employed by the State; that on the 22d day of February, 1934, upon the direction of his immediate superior, the deceased went to Wheaton, County of DuPage, on matters concerning his e:mployment and conducted an investigation as to whether or not certain persons should pay a retailer’s or occupatiortal tax, as provided by the statute of the State of Illinois; that he conducted a hearing, and it then became his duty to return to Springfield to the place of his employment and report his acts and doings and the result of his investigation.

The application sets forth that the deceased was on his way to Springfield and had arrived in the city of Springfield, and was on a street known as Fifth Street, driving an automobile, when the automobile in which the deceased was riding, collided with another automobile and the deceased was seriously injured. This accident occurred on the 23rd day of February, 1934. The deceased died the next day at a hospital in the city of Springfield. His hospital bill was $22.50 and his physician’s bill was $15.00.

At the time of his death, John C. Werckman, left him surviving the claimant as his widow, who was wholly dependent upon him and one child named Lura Jean Werckman, aged thirteen years, and it is alleged that she is partially dependent upon the deceased. At the time of Werckman’s death, he was receiving Two Hundred Dollars ($200.00) per month.

An iiitervening petition was filed on behalf of the minor child of the deceased, by a former marriage, but the facts as above set forth constitute the grounds upon which this decision must rest.

The first question to be determined is whether or not the duties of the deceased brought him under the Compensation Act of this State, it being admitted that the deceased met his death in the manner herein set forth.

Under the Court of Claims Act, the Court of Claims must administer the Workmen’s Compensation Act in the manner provided in the Workmen’s Compensation Act. Section 3 thereof provides that the provisions of the Act shall apply automatically and without election to the State * * * and to all employers and all their employees engaged in :my department of the following enterprises or businesses which [*133] are declared to be extra hazardous. Then follows ten subparagraphs. From that part of said Section 3 above referred to, it is apparent that the Act only applies automatically to an employee engaged in any one of the departments or enterprises or businesses which are declared to be extra hazardous.

The Attorney General contends that the principal business or the ?hate is tne exercise of a governmental function, and that such function in administering the Retailers’ Occupational Tax is not extra hazardous. Claimant contends that because the Department of Finance which regulates the collection of the Retailers’ Occupational Tax happens to be located in a rented building, which is subject to statutory or municipal regulations on account of fire escapes, boilers, elevators, etc., such employment is extra hazardous.

Claimant further contends that at the time the deceased met his death, he was on actual duty, and it was a part of his business to drive around over the State and make proper reports and investigations, and further contends that if the deceased traveled by automobile, he was under the Compensation Act, whether struck by another automobile or a train, and cites several cases to that effect.

No question arises upon this record as to whether or not the deceased was in the performance of his duty but there must be something else in addition to the performance of his duty to bring the deceased under the Workmen’s Compensation Act. He must have been employed in some employment which the Statute declares to be extra hazardous and mentioned in said Section 3. It is admitted by claimant that an employer may be engaged in both a hazardous and a nonhazardous occupation, and urges that in this instance, the employer, the same being the State of Illinois, was and is engaged in both hazardous and non-hazardous employment or businesses. The business which consists of necessarily housing people in buildings that are regulated by la^ and ordinances for the protection of persons housed in the building and those employed in it is regulated by statute, because the persons are necessarily situated there in constant danger.

Claimant further urges that laws are made to regulate the being and driving of automobiles and other vehicles on city streets and hard roads and travel by railroads because persons engaged in that line of endeavor are in constant danger, and concludes that this makes persons so engaged come [*134] within the classification of extra hazardous occupations, and as such compensable through the provisions of the Workmen’s Compensation Act.

The statute provides as follows: “ In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances or for the protection and safeguarding of the employees or the public therein ; each of which occupations, enterprises or businesses are hereby declared to be extra hazardous and come under the

Compensation Act.”

Claimant’s petition for compensation does not set up sufficient grounds, but iiiasmuch as both sides argued this contention, me will pass upon it.

It will be noted that the statute uses the word “enterprise.” Now, in this instance, the State is nothing more or less than a tenant, in a building several citories high, subject to municipal and statutory regulations. The State does not own it, but merely occiipies a part thereof. It is difficult to see how this could be an “enterprise” or come within the definition of the term “business” as set forth in claimant’s brief. Claimant quotes from the case of Walah vs. Iwhstrial Cowmissiom, 345 Illinois, 356, wherein the term “business ’’ is held to mean an employment which occupies a substantial portion of the time and attention of the one engaged in it. It caiiiiot be said that the State comes within this definition of the term “business. ” Vhether or not a person is within the provisipns of the Compensation Act must be determiiicd by the business itself.

A familiar illustration is set forthh in Angerstein’s treatise on Workmen’s Compensation. The author of that work says that an employer might own a factory containing powerdriven machinery, etc., which automatically would bring it under the act. All the employees of such, factory would be under the act regardless of what their duties were, just so long as they were engaged in any department of the business, and this would include stenographers, salesmen, clerical help, etc. Tht same employer might o ~ v nand operate a clothing store entirely separate and apart from the factory, in which store there were no appliances or machinery of any description. This clothing store, therefore, would not come under the act automatically, and the employees, therefore, would not [*135] be under the act unless and until the employer had filed his written acceptance of the act with the Industrial Commission.

If an employee of any department of the factory were injured, he would have no remedy except the measure of compensation provided by the act. An employee of the clothing store, would have no rights whatever under the Compensation Act unless the employer had affirmatively filed his written acceptance of the act, and the employee’s only possible remedy viodd be an action at common law, in which in order to recover damages he would have to establish that the injury was due to the employer’s negligence and that he, thc employee, had not been negligent.

The State of Illinois, with its multiplicity of departments, must be considered, insofar as the Workmen’s Compensation Act is concerned, the same as an employer engaged in separate and distinct lines, some of which are under the Compensation Act, as an illustration, the Highway Department, and some of which are not under the Act. Nothing appears in this case which would lead us to the conclusion that the department in which the deceased was employed, was extra hazardous within the meaning of the Compensation Act. The State was not maintaining a building or structure for profit, or otherwise. Neither could it be successfully contended, that even though it could be said that the State was maintaining a structure, that such maintenance required a substantial portion of the State’s time and attention.

We, therefore, conclude that the motion of the Attorney General must be sustained, and this cause dismissed.