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August 17, 1954


The opinion of the court was delivered by: Platt, District Judge.

In this suit various preliminary motions are presented to the court. It is a personal injury suit in four counts as follows:

Count I against Richard Davis;

Count II against Richard Davis and Oscar Davis;

Count III against Richard Davis and Midland Truck Lines, Inc.; (No doubt through oversight the defendant Richard Davis has failed to file a motion or plea as to Count III. The court, therefore, enlarges the time for Richard Davis to plead to Count III until August 28, 1954.)

Count IV against Community Unit School District # 100, Marion County, Illinois.

The defendant Midland Truck Lines, Inc., has filed a counterclaim against the plaintiff and a cross-claim against the other defendants.

The defendants Richard and Oscar Davis have filed motions to dismiss Count II of the complaint, or in the alternative to require a more definite statement. The same defendants have filed similar motions against the cross-claim.

The school district defendant has filed a motion to dismiss, both to Count IV of the complaint and to the cross-complaint filed against it, for the reason that the school district is immune from tort liability.

The motion to dismiss Count II of the complaint or in the alternative to require a more definite statement may be disposed of summarily. The defendant either knows who was operating the automobile in question, or by use of discovery may obtain sufficient knowledge to file a responsive pleading. Fowler v. Baker, D.C., 32 F. Supp. 783. Also see Form 10 of the Federal Rules of Civil Procedure, 28 U.S.C.A. This motion is therefore denied.

This brings us to the more interesting question presented by the Motion to Dismiss Count IV, and the cross-complaint. The proposition of law is should a tort action against a school district be dismissed when no allegation is made in the complaint that the school district has insurance, or other means of paying the sought judgment without impairment of its public funds? The answer is not entirely free from doubt from an examination of the Illinois decisions but a careful analysis of these cases results in the conclusion that the suit should not be dismissed.

It is now clearly established that a charitable corporation is not immune to tort liability. However, the execution on the judgment, if obtained, is limited to non-trust funds. Moore v. Moyle, 405 Ill. 555, 564, 565, 92 N.E.2d 81. The allegations praying for a judgment in a complaint against a School District should probably allege and be limited to funds other than public funds. See Thomas v. Broadlands Comm. Consol. Sch. Dist. 201, supra. In fact such funds need not even be available at the time the judgment is entered, as they may be acquired afterwards. Anderson v. Armstrong, 180 Tenn. 56, 171 S.W.2d 401, cited with approval in Moore v. Moyle, supra, 405 Ill. at page 562, 92 N.E.2d 81.

In the complaint in the Thomas case it was alleged that there were sufficient funds available by reason of liability insurance to pay any judgment recovered, and the plaintiff offered to limit the collection of any judgment to the proceeds of the policy. The court there said that if there was no insurance the law in Illinois is clear that a school district, being a quasi-municipal corporation, is not liable in tort. But the court set forth that since there was insurance alleged the immunity is removed to the extent of the available insurance. The defendant presented the argument that the school district as a subdivision of the state could not be sued without its consent. While admitting this to be the general rule based upon the reason of public policy, the court stated that the purpose of the law was to protect public funds and public property. The court, therefore, strongly refuted the defendant's suggestion that immunity of a municipal corporation from suit can be made to rest on the notion that [348 Ill. App. 567, 109 N.E.2d 639] "the King can do no wrong." The court further stated that if the public funds were protected by liability insurance to that extent the reason for immunity to suit is removed. It then added: "The reasoning of the Supreme Court in the Moore case, supra, applies with equal force to the question before us."

The leading case in Illinois prior to Moore v. Moyle, supra, was Parks v. Northwestern University, 218 Ill. 381, 75 N.E. 991, 2 L.R.A.,N.S., 556, and the supreme court affirmed the lower court's sustaining of a demurrer to a complaint charging negligence on the part of the professor, an employee of the defendant, a charitable institution. The professor was demonstrating in the chemical laboratory and a reaction was obtained destroying an eye of the plaintiff. The Moore case when carefully examined appears to overrule the Parks case. It mentions that in the case of Marabia v. Mary Thompson Hospital, 309 Ill. 147, 140 N.E. 836, it was held that a default judgment in a tort suit against a charitable hospital was valid, in other words holding that the charitable immunity could be waived. ...

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