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Lynwood v. Decatur Park Dist.

JUNE 9, 1960.

WALTER J. LYNWOOD, PLAINTIFF-APPELLANT,

v.

DECATUR PARK DISTRICT, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Macon county; the Hon. RODNEY A. SCOTT, Judge, presiding. Reversed and remanded.

ROETH, JUSTICE.

Rehearing denied and opinion modified August 1, 1960.

On June 17, 1959, plaintiff filed a complaint in the Circuit Court of Macon County against the Decatur Park District, defendant, seeking to recover judgment against the defendant for its alleged negligence on January 22, 1959, causing the destruction and loss of use of an airplane. The complaint specifically alleged that defendant carried a public liability insurance policy in the amount of $500,000. It is apparent from this allegation when considered in the light of the damages alleged and the ad damnum paragraph of the complaint, that the amount of the liability insurance carried by defendant is more than sufficient to pay any judgment that may be rendered against defendant. On July 14, 1959, defendant filed a motion to strike and dismiss each count of the complaint and certain designated paragraphs of each count. The grounds assigned in said motion to strike and dismiss each count of the complaint as a whole, were:

"1. That this count fails to state a cause of action upon which relief can be granted against this defendant" and

"2. That the defendant is a municipal corporation and is therefore immune to the purported cause of action."

The motion came on for hearing on August 17, 1959, at which time the trial court struck the specific paragraph of the complaint claiming damages for loss of use of the airplane, and took under advisement the motion to strike and dismiss the complaint as a whole. The record indicates that the motion above was taken under advisement for the purpose of affording counsel an opportunity to furnish briefs and that briefs were furnished. The record discloses that counsel for defendant submitted a copy of Article 12.1 as added to the Park District Code by an act of the legislature approved on July 9, 1959. (Ill. Rev. Stat. Chap. 105, Sec. 12.1.) Thereafter, on October 21, 1959, the trial court sustained defendant's motion to strike the complaint and entered judgment in bar of plaintiff's suit. Plaintiff filed notice of appeal to the Supreme Court and on November 16, 1959, filed the authenticated record in that court. Plaintiff then undertook to advance the cause for hearing before the Supreme Court pursuant to Rule 41 of the Supreme Court. Defendant resisted the motion on the ground that the Supreme Court did not have jurisdiction of the case on appeal. Upon consideration of the matter the Supreme Court apparently concluded that no constitutional question was involved and thereupon transferred the cause to this court.

Plaintiff contends:

1. The doctrine of governmental immunity has been abolished by the decision in Molitor v. Kaneland Community Unit District, as to all municipal or quasi municipal corporations.

2. The operation of an airport by a park district is a proprietary function and that independent of the Molitor case the park district is liable for negligence in the performance of proprietary functions.

3. Regardless of whether the maintenance of an airport is proprietary or governmental, the park district is liable where, as here, it carries public liability insurance.

Defendant contends:

1. Sec. 12.1 of the Park District Code adopted in 1959 makes the park district immune irrespective of whether the function is governmental or proprietary or whether there is public liability insurance coverage.

2. The operation of an airport is governmental.

3. Park districts have always been immune as to ...


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