ANNA A. ESKER,ADIIII~ISTRATOROF THE ESTATE OF LAWRENCE F. ESKER, DECEASED ; AND EUGENE A. ESKER., ANDREW THEODORE ESKER, EDGAR L. ESKER, MINORS, BY ANNA A. ESKER, THEIR NEXT FRIEND, Claimants, v. STATE OF ILLINOIS, Respondent.
Case summary
Claimant sought benefits under the Workmen's Compensation Act for the death of her husband from typhoid fever allegedly contracted in the course of employment. The court denied the claim because the evidence did not establish by a preponderance that the typhoid fever was contracted from contaminated water at work, and because the claim was not filed within the time required by Section 24 of the Act, depriving the court of jurisdiction.
Cases cited: Eauer & Black vs. Ind. Comm., 322 Ill. 165; Madison Coal Corp. vs. Ind. Comm., 320 Ill. 293; Labby, McNeill & Labby vs. Ind. Comm., 326 Ill. 293; Paradise Coal Co. vs. Ind. Comm., 324 Ill. 420; Camp Spring Mills Co. vs. Ind. Comm., 302 Ill. 136; Malcolm vs. State, No. 3546
AI-generated summary from the opinion text — may contain errors. The opinion text and PDF above are the official record.
Headnotes
- WORKMEN’S COMPENSATION Am-claim under for death resulting from tvphoid fever-alleged t o have been contracted from drinking water procured from smrces near place of employment-when evidm-e inmificient to sustain. The evidence is wholly insufficient to sustain a claim for compensation for death of employee, resulting from typhoid fever, alleged to have been contracted by reason of drinking water, while at work, procured from sources near his places of employment, where it clearly appears that said deceased consumed food and drank water from various sources, any of which might and could with equal probability cause t h e contraction of said fever.
- Saari:-bzci-deit of proof i n cluims under-is on claimant. Claimant has the burden of proof upon every essential element of a right to compensation, and the proof required is that he establish every disputed question of fact as t o such right, by a preponderance or greater weight of the competent evidence, and no award can be based upon speculation, surmise, conjecture or upon a choice between two views equally compatible with the evidence.
This claim was filed March 6, 1941. It is for benefits under the TVorkmen’s Compensation Act claimed for the death of claimant’s husband from typhoid fever alleged to have been contracted out of and in the course of his employment.
Claimant further alleges that deceased, Lawrence F. Esker, was employed by the State of Illinois as a foreman on maintenance road work; that it was necessary for him to stay away from home some weeks while so employed, and that ’ respondent paid the costs for his lodging and food while away from home.
Claimant further alleges that the said Lawrence F. Esker contracted typhoid fever on the 16th day of October, 1940, while away from his home in connection with his duties, by drinking water which was contaminated.
The evidence shows that the crew with whom Lawrence - F. Esker worked, would be away from home during the week and return home on week ends; that during the week they would stay at hotels or private rooming houses in cities near their work; that they would obtain most of their meals in restaurants ; that they would take water out with them from the city in which they were staying; also that much of their drinking water was obtained from wells, cisterns, or from farms and residences near their work.
The evidence further shows that the deceased had no running water in his home, and that the drinking water used at his home was secured from wells from nearby neighbors ; that about a month subsequent to her husband’s death, claimant herself and her son became ill with typhoid fever. The evidence does not show that any tests mere made of any of the sources of the water supply to determine if any of them were conta.minated with typhoid germs.
The applicant has the burden of proof upon every essen. tial element of a right to compensatipn. The proof required is that the applicant establish every disputed question of fact [*346] as to a right to compensation by a preponderance of the competent evidence in the record. An award cannot be based upon speculation, surmise, conjecture or upon a choice between two views equally compatible with the evidence.
Eauer d- Black vs. Ind. Corn , 322 Ill. 165.
Madison Coal Gorp. vs. In&-Com., 320 Ill. 293.
I An award may not be based upon imagination, speculation or conjecture, but must be based upon facts established by a preponderance of the evidence.
Labby, McNeill & Lzbby vs. Ind. Corn., 326 111. 293.
Paradzse Coal Co. vs. Ind. Corn., 324 id 420.
Camp Sprang Malls Co. vs. Ind. Corn., 302 id 136.
WORKMEN'S COMPENSATION Am-jurisdiction of ccurt to hear claims. f o r c m p m s a t i c m tinder- giving .notice 'of accident, making claim for and filing application for compensatiom with in time fixed in Xection 24 of, condition precedent to . jurisd~ction-paragraph ( h ) of Section 19, not applicable in original proceeding under. The precise question involved herein was before the court in the case of Malcolm vs. State, No. 3546, ante, in this volume, and the decision therein is controlling in this case.
FISHER, J. [*347] This claim was filed July 17, 1940, seeking an award in the sum of Three Thousand Dollars ($3,000.00) for injuries suffered by claimant while employed as a laborer on State Bond Issue Route No. 145 on January 16, 1939. Amended complaint was filed December 20, 1940. Claimant was paid for total temporary disability, and’the final period for which said compensation was paid was from June 6th to June 20th inclusive, 1939.
This claim now comes before the court on the original complaint, respondent’s motion to dismiss with affidavit in support thereof, respective briefs and arguments of respondent and claimant, claimant’s amended complaint, reports of the Division of Highways, and transcript of evidence on behalf of claimant. - Section 24 of the Workmen’s Compensation Act provides, in part, as follows:
“Unless application for compensation is filed with the Industrial Commission within one year after the date of the last payment of compensation, the right to file such application shall be barred.”
In the Act creating the Court of Claims it is provided that this court shall have the power “to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by an employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the Workmen’s Compensation Act.”
These, by limitation, are jurisdictional, and unless they are followed by a claimant this court is without jurisdiction to hear the matter and, upon motion, the complaint must be dismissed.
Claimant admits that this claim as filed does not comply with Section 24 and, since the complaint shows on its face that more than twelve months elapsed from the date of the injury and/or the last payment. of compensation and the date of filing claim, the court must conclude that the provisions of Section 24 of the Workmen’s Compensation Act have not been complied with and the court lacks jurisdiction to consider this claim under that section.
Claimant seeks to bring his claim within Section 19, Paragraph (h), which provides - “An agreement or award under this Act providing for compensation in installments may at any time within eighteen months after such agreement [*348] or award be reviewed by the Industrial Commission at the request of either the employer or employee."
This question was decided by the court in the case of Clarence Malcom vs. State of Illinois, No. 3546, opinion rendered at the September, 1942, term of this court, in which case this question was discussed in detail, and the court concluded that paragraph- (h) of Section 19 was not applicable in original proceedings.
This court being without jurisdiction, the motion to dismiss by respondent is therefore granted and the complaint is hereby dismissed..