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,
(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 ...