Corinnew. Arnold v. State of Illinois

On February 9, 1951, an award in favor of claimant, Corinne W. Arnold, widow of Clarence C. W. Arnold, deceased, was entered in the sum of $6,675.00. Arnold vs. State, 20 C.C.R. 229.

At the time of said award, there was one child of decedent, Barbara C. Arnold, who became 18 years of age on December 4, 1952. The widow of the decedent was alone entitled to $6,000.00, but, by reason of the existence of the one child under the age of 18 years, the award was fixed at $6,675.00.

On March 2, 1953, respondent filed a motion to modify the award, because of the fact that the one child had reached the age of 18 years.

Following our opinion in Corcormz vs. State, 19 C.C.R. 159, we computed the modification of the award as follows: [*2]

At the time Barbara C. Arnold became 18 years of age $2,613.21 had already been paid on said award. These payments amounted to .39149% of the total award of $6,675.00; .39149% of the $675.00 attributable to the one child amounts to $264.26; $264.26 subtracted from $675.00 equals $410.74. The balance of the award remaining unpaid, subsequent to December 12, 1952, amounts to $4,061.79, from which should be subtracted the sum of $410.74, leaving a balance of the award to be paid in the sum of $3,651.05.

The award heretofore entered in this case was, therefore, modified, and said sum of $3,651.05 was ordered paid to Corinne W. Arnold at the rate of $22.50 per week for a period of 162 weeks, plus one final payment of $6.05.

The modification of award, filed on March 20, 1953, contained the following statement :

“All future payments being subject to the terms and conditions of the Workmen’s Compensation Act, jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary. This opinion is not to be construed as eliminating Barbara C. Arnold forever from a possibility of participation in the award. In the event of the death or remarriage of her mother, Barbara C. Arnold would be entitled to the unpaid balance of the award. Wuechter vs. Ind. Corn., 367 111. 256; Swift 6 Co. vs. Ind. Corn., 288 111. 132; Beckemeyer Coal Co. vs. Ind. Corn., 370 111. 113; Swift 8 Co. vs. Ind. Corn., 309 Ill. 11. The rights of Barbara C. Arnold were fixed prior to her reaching the age of 18, and her rights can never be extinguished as long as any amount remains unpaid under this award as modified.”

On August 1, 1953, Mrs. Arnold remarried, and, upon receipt of this information, the Department of Finance discontinued payments to her. As of September 11, 1953, there remained unexpended the sum of $2,- 773.55, from the said award. On January 26, 1954, a petition was filed in this Court requesting that the balance of the fund, due and unpaid under the terms [*3] of the original order, be paid to Barbara C. Arnold, the minor child at the original proceedings, and, who now is more than 18 years of age.

There do not appear to be any cases under the Workmen ,s Compensation Act, which have answered this precise question.

In the case of swift d? Co. vs. Ind. Corn., 309 Ill. 140, the balance of the award was ordered paid to the child of the decedent where the widow died prior to the exhaustion of the fund. The only distinction between the cases is the fact of the death of the widow in the Swift Case, and the remarriage of the widow in the instant case.

In Illifiois Workmen’s Compemation, by Thomas C. Angerstein, under Section 1294, at page 154, the writer, in construing the case of swift a? Co. vs. Ind. Corn., stated the following :

“A similar situation would exist in case of a widow who remarried and there was such a child or children left surviving. Where there is an award or right to compensation in case of a widow as the sole beneficiary and she remarries, then such award or right to compensation terminates with the remarriage. Where, however, there is also a child or children surviving whom the deceased was under legal obligation to support at the time of the accidental injury which resulted in his death, and following an award to the widow for the support of herself and such child or children the widow remarried, then any remainder of such award, at the time of such remarriage, and which would have been payable but for such remarriage, would upon petition and order of the Commission be made payable to such surviving child or children.”

In view of the specific reservation contained in the modification of award heretofore entered in this cause, the Court finds that Barbara C. Arnold is entitled to the unpaid balance.

An award is, therefore, made to Barbara C. Arnold in the amount of $2,773.55, payable at the rate of $22.50 per week for 123 weeks, with a final payment of $6.05.

[*4] (N O . 4558-Claimant awarded $520.65.) VILLAGE O F LAKE VILLA, A MUNICIPAL CORPORATION, Claimant,,

VS. STATE OF ILLINOIS,Respondent.

Opinion filed May 11, 1954.

BERNARD J. JURON, Attorney for Claimant.

LATHAMCASTLE,Attorney General ; LAWRENCE IT. R YAN, Assistant Attorney General, for Respondent.

HIGHWAYS-negligence. Where evidence shows that private bulldozer operator was acting as an agent of respondent in the course of his employment, the doctrine of respondeat superior applies, and an award will be made.

WHAM,J.

The claim in this case by the Village of Lake V i l h is for damages in the amount of $520.65. It is alleged that respondent’s agents and servants negligently op

erated a bulldozer into and against a fire water hydrant,

owned by the Village of Lake Villa, while engaged in clearing snow from the state highway within the Village limits.

The evidence reflects that on December 21, 1951, a severe snow storm occurred in the vicinity of Lake Villa, resulting in all highways being closed and necessitating snow removal operations. Cedar Avenue in the Village of Lake Villa is on Illinois Route No. 132, and is a part of the system of state highways; and, as such, is under the jurisdiction of the Department of Public Works and Buildings of the State of Illinois for maintenance. Snow and ice removal are a part of the maintenance operations.

Because of the heavy snow fall, it became necessary for the Division of Highways to procure privately owned trucks, bulldozers and tractors to supplement its own snow removal equipment in clearing the highways. A bulldozer a;nd operator were procured to perform snow [*5] clearing operations from Richard Jenkins and Ray Boller, doing business as Jenkins and Boller, under an oral agreement, wherein the Division of EIighways reserved the right to choose the location and manner of operations.

The operatioiis of this particular bulldozer during the afternoon of December 24, 1951 consisted of pushing drifted snow from the main traveled way onto the street shoulder of Cedar Avenue in the Village of Lake Villa. The snow upon the shoulders at the time of the snow clearing Operations was, according to the evidence, from one to two feet in depth. The Departmental Report stated that the snow was of sufficient depth to completely cover the fire hydrants on the shoulder.

The evidence established that the Village fire hydrants in the area were approximately 26 to 30 inches in height above the ground, and were located 12 to 15 feet from the edge of the pavement.

While engaged in pushing the snow from the highway, the bulldozer struck a fire hydrant, breaking the same, and necessitating the installation of a new hydrant. This installation and necessary repairs were performed by the Inland Lakes Sewer and Water Company, who submitted their bill for such services in the amount of $536.40, which amount Rfr. Michael W. Reimers: operator of the Inland Lakes Sewer and Water Company, testified was paid by the Village Board.

There were no eye witnesses offered by either claimant or respondent to the happening of the accident. The respondent, however, in its Departmental Report filed herein, admitted that the hydrant was struck and broken by the Jenkins and Boller bulldozer, while it was engaged in pushing snow from the highway.

[*6] The evidence, presented in this case, leaves much to

be desired from the standpoint of presenting either a

claim or a defense.

It seems to us, however, that the reasonable in

ference to be drawn from all the facts and circumstances

in evidence is that the bulldozer operator was negligent.

His negligence consisted of either failing to observe the

fire hydrant, or, if such was not visible by reason of

snow, failing to make a proper investigation to ascertain whether there were fire hydrants or other hidden in

stallations in the path of the snow clearing operations.

Obviously, if such investigation had been made, the location of the fire hydrant would have been discovered,

and the damage avoided.

From the evidence, it appears that the operator of the bulldozer was acting as an agent of respondent, and was in the course of his employment, when the damage occurred. Therefore, respondent is, under the doctrine of respondeat superior, bound by the negligence of the operator.

It is noted that there is a variance between the repair bill set forth in the verified complaint, and the repair bill offered in evidence. It is noted that the bill offered in evidence contains a duplication, undoubtedly unintentional, of $15.75, an item for the wages of a laborer at $2.25 for seven hours. Inasmuch as the amount claimed in the complaint is $520.65, being $15.75 less than the bill offered in evidence, and, since the complaint has never been amended to correspond with the proof,