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United States District Court, Southern District of Illinois, S.D

October 29, 1959


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

Harold H. Strauss and V. Marguerite Strauss, d/b/a St. Lucie Skyways, plaintiffs, filed this suit against Decatur Park District, a municipal corporation, to recover for the destruction of a Cessna 182 airplane which was destroyed by fire on January 22, 1959. The defendant, on and prior to this date, operated the Decatur Airport at Decatur, Illinois, and the plaintiffs on the above date delivered the aircraft to defendant to be safely kept at a hangar owned and operated by it. The complaint alleges that defendant accepted delivery of the aircraft and stored the same in said hangar, and that defendant also agreed to return the aircraft upon demand, in return for which the plaintiffs agreed to pay the usual and customary charge for the services rendered; that in violation of the agreement and without fault on plaintiff's part, defendant wholly neglected and omitted to properly store and preserve the aircraft, but negligently placed it in a place where it was destroyed by fire on said date. The value of the plane was alleged to be $13,655.20.

The defendant moves to dismiss the action on two grounds, viz.:

(1) Because the complaint fails to state a claim against the defendant upon which relief can be granted, and

(2) Because the defendant is a municipal corporation and is therefore immune to the purported cause of action.

The defendant municipal corporation is organized and created under "The Park District Code" of Illinois. The Act creating this district became effective July 8, 1947, as amended by Act approved May 17, 1951. Ill.Rev.Stat., Ch. 105, Secs. 1-1 to 12.1-1. The Supreme Court of Illinois has held the Act constitutional. People ex rel. Honefenger v. Burris, 408 Ill. 68, 95 N.E.2d 882; People ex rel. A.C. Ammann v. Wabash Railroad Company, 391 Ill. 200, 62 N.E.2d 819.

Section 8-1 of the Act provides for the General Corporate Powers and Section 8-4 provides as follows:

    "All park districts shall retain and be vested
  with all power and authority contained in * * *
  `An Act authorizing park commissioners to acquire
  or provide sites for armories for the National
  Guard and to acquire or establish and to maintain
  landing fields for aircraft'."

This Section gives Park Districts the power to acquire lands for the establishment and maintenance of landing fields, and Section 9-2, Ch. 105, Ill.Rev.Stat. spells out the authority in the following language:

    "9-2. Every park district is authorized to
  acquire by purchase or condemnation under power
  of eminent domain, or lease, real estate, in
  whole or in part, either within or without the
  corporate limits of said park district for the
  purpose of establishing for said district an
  airport and landing field for aircraft, and to
  provide hangars, shops, and other necessary
  equipment and appurtenances therefor usually
  incident to the operation of an airport, and to
  maintain and operate the same."

Sections 9-2a and 9-2b provide for taxation, and the issuance of bonds to provide funds for the purposes aforesaid.

A careful reading of the Park Code discloses that it was the intent of the General Assembly of Illinois that a park district was to be a governmental body in the exercise of all its functions, and that the purpose of the General Assembly to place governmental power in park districts was to create the right to acquire and operate, among other things, an airport.

The question presented by the motion to dismiss is whether or not this defendant, a governmental body, is liable for negligence of its employees under the doctrine of respondeat superior for the loss by fire of the aircraft in question. The plaintiffs seek to avoid this on their theory that the action sounds in contract. To quote the plaintiffs, they say that this is not an "action in tort for negligence", but is an action for breach of contract. The plaintiffs do not and cannot deny that their complaint alleges "that in violation of said agreement and without fault on the part of the plaintiffs, the defendant wholly neglected and omitted to properly store and preserve said aircraft, but negligently placed it in a place where it was destroyed by fire". In so doing the plaintiffs seek to equate "tort" and "negligence" even though the former is a much broader term than the latter. Whether or not the action is labeled "tort" or "contract", it is still based on negligence, and park districts such as created by the Park Code are immune from liability for negligence.

The Courts of Illinois and other states have specifically rejected attempts to circumvent the doctrine of immunity by altering the form of action so as to make it sound in contract, when in fact the only basis for holding the one enjoying immunity responsible is the negligent act or acts of its employees. This is true in charitable trusts as well as municipal corporations in the exercise of governmental functions. This immunity was written into the law of Illinois long prior to the passage of the Park Code.

In Wattman v. St. Luke's Hospital Association, 314 Ill. App. 244, 41 N.E.2d 314, an action was brought against a hospital which at the time enjoyed charitable immunity. The complaint consisted of two counts. One was for wrongful death. The other was based upon a violation of an alleged contractual relationship whereby the hospital impliedly promised not to injure the plaintiff through negligent acts of its employees. The first count was dismissed as sounding purely in tort, being therefore barred by the doctrine of charitable immunity as announced in Parks v. Northwestern University, 218 Ill. 381, 75 N.E. 991, 2 L.R.A.,N.S., 556. The second count was also dismissed. In sustaining the dismissal of the second count, the Illinois Appellate Court stated, 314 Ill. App. at page 260, 41 N.E.2d at page 321:

  "In the case at bar, plaintiff bases her action
  against the hospital corporation upon the
  negligence of the servants of such hospital.
  Section 31 of the Civil Practice Act,
  Ill.Rev.Stat. 1941, c. 110, § 155, states that
  neither the names theretofore used to distinguish
  the different ordinary actions at law, nor any
  formal requisites theretofore appertaining to the
  manner of pleading such actions shall thereafter be
  deemed necessary or appropriate, and that the
  pleadings shall contain a plain and concise
  statement of the pleader's cause of action. If we
  adopted plaintiff's theory as to the action against
  the hospital corporation, all that would be
  necessary in order to overcome the rule laid down
  in the Parks case, would be to change the form of
  action from tort to contract. The Armstrong case
  [Armstrong v. Wesley Hospital, 170 Ill. App. 81] on
  which plaintiff relies, carefully points out that
  if the plaintiff's allegations were true, she was
  entitled to recover in assumpsit `at least the
  money paid by her to defendant and possibly
  whatever damages for the breach of the contract may
  be capable of exact proof'. We have examined the
  abstract and briefs in the Armstrong case and find
  that there plaintiff relied on two counts, each
  based on a contract. In her brief Mrs. Armstrong
  said: `The plaintiff seeks to recover from the
  Wesley Hospital for the breach of two simple
  contracts. These contracts are set out in a
  declaration containing two counts. The evidence
  shows that the breach of these contracts was
  accompanied by some negligence; that the action is
  based on the rights of the plaintiff under these
  contracts and not upon the negligence accompanying
  the breach of the contracts.' An examination of the
  authorities satisfies us that a charitable
  institution such as St. Luke's Hospital, is
  necessarily competent to contract in order to carry
  out the purpose for which it was incorporated and
  may be sued for breach of such contracts. We are
  convinced, that the doctrine of respondeat superior
  does not extend to such institutions. The rule
  followed in the Armstrong and the Ward cases would
  inevitably abrogate the doctrine announced in the
  Parks case that a charitable trust is excepted from
  the rule of respondeat superior. In the Parks
  case, 121 Ill. App. 512, 517, the Appellate Court

  "`It is further urged that the plaintiff was a
  student for hire, and that the defendant is
  authorized to charge and receive tuition by its
  charter. Therefore, when the plaintiff was
  admitted as a student and paid his tuition, a
  contract existed between the plaintiff and
  defendant in which the defendant assumed
  precisely the obligations and incurred precisely
  the same liability an individual would have
  incurred under a like contract. We are of the
  opinion that the fact that the plaintiff was
  required to and did pay tuition for the
  instruction and benefits offered by the
  defendant, does not deprive the defendant of its
  eleemosynary character. The amounts thus received
  from plaintiff and other students are not for
  private gain, but contribute to the funds of the
  institution and enable it more effectually to
  accomplish the purposes for which it was founded
  and organized. The fact that the defendant
  received from the plaintiff and other students
  tuition, does not make it the less a public
  charity, nor does it expose the trust fund to the
  liability of being depleted or frittered away by
  the negligence of its officers, professors or
  employees. In case of injury the wrong-doer, not
  the trust fund, must respond.'

    "We are of the opinion that the complaint in
  the instant case does not state a cause of action
  against the St. Luke's Hospital Association under
  either count."

Rudy v. Lakeside Hospital, 115 Ohio St. 539, 155 N.E. 126, a bailment case very similar to the one at bar, is in accord with the reasoning of the Wattman case. In the Rudy case, a patient, upon arrival at the defendant's hospital, turned over some valuable jewelry to a hospital employee for safekeeping. The hospital employee subsequently delivered the jewelry to an imposter posing as the plaintiff's son-in-law. The defendant obtained a judgment on the pleadings. In sustaining that judgment the Ohio court stated, 155 N.E. at page 126:

    "In her statement of claim the plaintiff relied
  upon an implied contract by way of bailment as a
  predicate for recovery. It contained no specific
  allegations of negligence, and it is contended
  that she had the right to sue either in tort for
  a negligent delivery, or for a breach of the
  bailment contract.

    "If this were a case of contract, purely not
  one involving wrongful conduct on the part of the
  institution's employee, liability might attach.
  But this case presents a different aspect and is
  based upon an unauthorized and negligent delivery
  to an imposter.

    "Under the theory of nonliability of charitable
  institutions adopted by this court, as heretofore
  indicated, we are unable to make any distinction
  between cases involving damages to the person of
  a patient and damages to his property, where such
  are caused by the wrongful act of an employee. We
  therefore affirm the judgment of the Court of
  Appeals. * * *"

In Van Gilder v. City of Morgantown, 136 W. Va. 831, 68 S.E.2d 746, the West Virginia court held that governmental immunity extended to and covered bailments. An action was brought to recover the value of an airplane destroyed by a fire in the hangar at a municipal airport operated by the city. The airplane was stored in the hangar at a monthly rental of $15. The court held that although a good cause of action was stated for breach of a contract of bailment, still governmental immunity controlled and no action could be maintained against the defendant. Beginning at page 750 of 68 S.E.2d, the court stated:

    "We fully realize that considered segregated
  from the general legislative purpose of
  encouraging and promoting the development of
  aviation in West Virginia and viewed

  alone, it would seem a far cry to say that the
  rental by the City of Morgantown to L.J. Van
  Gilder of space for his airplane for $15.00 per
  month amounts to the exercise of its sovereignty
  by the State of West Virginia. When we consider
  that liability in connection with the operation
  of an airport might result in the obliteration
  financially of many of our smaller cities and
  that that fact would prevent other small cities
  from embarking upon an enterprise in which the
  public good is involved, the fact that the
  development of aviation had prompted the
  Legislature to extend the State's immunity
  becomes more apparent. This case could impair the
  financial existence of the City of Morgantown if
  based upon a general catastrophe. Fortunately it
  does not. The principle is the same.

    "For the foregoing reasons our reply to the
  certified questions is: (1) The declaration does
  state a good cause of action for the breach of a
  contract of bailment for hire; (2) improperly
  propounded and hence not answered; (3) the
  Morgantown Municipal Airport, as shown by the
  allegations of defendant's Special plea and
  Statement of Defense No. 1 was, at the date of
  the injury complained of, being operated by the
  City of Morgantown in the performance of a
  governmental function under the provisions of
  Section 10 of Chapter 12 of the Acts of 1947, and
  therefore the immunity of the State of West
  Virginia from being made a defendant in any court
  of law or equity covers its conduct in such

In City of Corsicana v. Wren, 317 S.W.2d 516, the Texas Supreme Court applied the doctrine of governmental immunity to bar an action brought for damages to an airplane stored at a city airport under a contractual arrangement resulting from a fire allegedly caused by the negligence of the city employee.

The Fifth Circuit Court of Appeals in Imperial Production Corp. v. City of Sweetwater, 210 F.2d 917, a decision similar to that of the City of Corsicana case, held the doctrine of sovereign immunity exempted the city from liability for damages to an airplane stored at the municipal airport resulting from a fire.

The common law rule is set out fully in the following cases: Le Pitre v. Chicago Park District, 374 Ill. 184, 29 N.E.2d 81; List v. O'Connor, 21 Ill. App.2d 399, 158 N.E.2d 103; Wiles v. Association of Commerce of Decatur, 332 Ill. App. 375, 75 N.E.2d 526; Griffin v. City of Chicago, 317 Ill. App. 368, 45 N.E.2d 890; Love v. Glencoe Park District, 270 Ill. App. 117; Hendricks v. Urbana Park District, 265 Ill. App. 102.

Hendricks v. Urbana Park District was an action for damages due to the death of the plaintiff's intestate while using a Park District swimming pool. The court held the Park District not liable and quoted with approval the following language from Wilcox v. City of Chicago, 107 Ill. 334;

    "`The exemption from liability is placed upon
  the ground that the service is performed by the
  corporation in obedience to an act of the
  legislature, — is one in which the corporation has
  no particular interest, and from which it derives
  no special benefit in its corporate capacity; that
  the members of the fire department, although
  appointed by the city corporation, are not the
  agents and servants of the city, for whose conduct
  it is liable, but they act rather as officers of
  the city, charged with a public service, for whose
  negligence in the discharge of official duty no
  action lies against the city without being
  expressly given, and the maxim respondeat superior
  has, therefore, no application.'

"The court further states:

    "`In favor of the doctrine, it may be that an
  additional, if not more satisfactory, reason for
  its adoption and rendering it an exception to the

  general rule may be found in public policy. If
  liable for neglect in this case, the city must be
  held liable for every neglect of that department,
  and every employee connected with it, when acting
  within the line of duty. It would subject the
  city to the opinions of witnesses and jurors
  whether sufficient dispatch was used in reaching
  the fire after the alarm was given; whether the
  employees had used the requisite skill for its
  extinguishment; whether a sufficient force had
  been provided to secure safety; whether the city
  had provided proper engines and other appliances
  to answer the demands of the hazards of fire in
  the city; and many other things might be named
  that would form the subject of legal controversy.
  To permit recoveries to be had for all such and
  other acts would virtually render the city an
  insurer of every person's property within the
  limits of its jurisdiction. It would assuredly
  become too burthensome to be borne by the people
  of any large city, where loss by fire is annually
  counted by the hundreds of thousands, if not by
  the millions. When the excitement is over and
  calm reason assumes its sway, it may appear to
  many where other methods could have been adopted
  to stay destruction, that appear plausible as
  theories, and their utter fallacy cannot be
  demonstrated by any actual test. To allow
  recoveries for the negligence of the fire
  department would almost certainly subject
  property holders to as great, if not greater,
  burthens than are suffered from the damages from
  fire. Sound public policy would forbid it, if it
  was not prohibited by authority.'" At pages

In Love v. Glencoe Park District, 270 Ill. App. 117, an action for damages for a death due to drowning, allegedly caused by the negligence of the Park District, it was held that the Park District was not liable. The court said (at page 119):

    "The only question presented to this court is
  whether or not the Glencoe Park District,
  organized under the act providing for the
  organization of park districts, can be held
  legally responsible for accidents such as the one
  involved in this proceeding. The park district
  was created under `An Act to provide for the
  organization of park districts and the transfer
  of submerged lands to those bordering on
  navigable bodies of water,' Cahill's Ill.Rev.St.
  ch. 105, § 295 et seq., approved June 24, 1895.
  Section 14 of the act, as amended in 1929, Cahill's
  St. ch. 105, § 308, conferred upon the park
  district, created thereunder, the power to
  construct equipment and maintain field houses,
  gymnasiums, assembly rooms, comfort stations,
  indoor and outdoor swimming pools, wading pools,
  bathing beaches and a number of other provisions
  for golf, tennis and other athletic sports. Under
  the Act, as amended, the park was given the power
  to make and enforce reasonable rules, regulations
  and charges therefor. This court had occasion to
  consider this question in the case of Stein v. West
  Chicago Park Com'rs, 247 Ill. App. 479, and we
  there held that the West Chicago Park
  Commissioners, a municipal corporation, created as
  it is by the State legislature as a separate
  entity, and, considering the purpose for which it
  was organized, namely, for the health, welfare and
  enjoyment of the general public, is not liable on
  the ground of respondeat superior for the
  negligence of its servants and agents. We believe
  this to be the rule of this State as announced in
  the cases of West Chicago Park Com'rs v. City of
  Chicago, 152 Ill. 392 [38 N.E. 697]; Bedtke v. City
  of Chicago, 240 Ill. App. 493; Holt v. City of
  Moline, 196 Ill. App. 235; Hendricks v. Urbana Park
  Dist., 265 Ill. App. 102.

    "It is also argued that the present rule is
  based upon the ancient doctrine that `the king
  can do no wrong.' We believe the rule is based
  upon a broader and more humane theory of
  government. The purpose of the State in the
  creation of park districts is primarily to
  provide for the health, welfare and entertainment
  of the public. The State could operate without
  such agencies, but without them the loss would be
  that of the public. They are not necessary to
  carry on the functions of government, but their
  existence is of inestimable benefit to the
  people. Accidents must, necessarily, happen
  because of their operation, but the great good to
  the greatest number greatly outweighs the
  hardships to the few. The health benefit derived
  by the general public is of first consideration,
  and it was evidently this fact which influenced
  legislatures in the creation of park districts
  similar to the one involved in this proceeding."

The plaintiffs cite authorities that deal with bailment rights, and there is no question about the theory of plaintiffs, and the law plaintiffs rely upon. However these authorities deal with the legal rights of private individuals, not with immunity rights that have long been applied to governmental municipal corporations such as park districts.

Since the happening of the loss in question, the General Assembly has further amended the Park District Code by incorporating, in 1959, Sec. 12.1, as follows:

    "Any park district shall not be liable for any
  injuries to person or property, or for the death
  of any person heretofore or hereafter caused by
  or resulting from the negligence of its agents,
  servants, officers or employees in the operation
  or maintenance of any property, equipment or
  facility under the jurisdiction, control or
  custody of the park district, or otherwise
  occasioned by the acts or conduct of such agents,
  servants, officers or employees."

This amendment merely reiterates the common law on immunity that has been in existence since the early legal history of Illinois. It shows definitely the intention of the General Assembly to keep the common law in force in so far as park districts are concerned, namely that municipal corporations of this type are immune to suits for grievances as so alleged in the complaint.

Accordingly the motion to dismiss the complaint is sustained.


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