Appeal from the Circuit Court of Cook County; the Hon. EDWARD
G. SCHULTZ, Judge, presiding. Reversed and remanded with
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Plaintiffs seek damages for injuries which occurred on June 7, 1958, while in the boys' gymnasium of the defendant Oak Lawn Community High School District 229. The court allowed the motion of defendant Oak Lawn that it be dismissed as a party defendant on the ground that on the date of the alleged occurrence it "did not have in existence any contract of insurance whereby said Defendant could be held liable in an action sounding in tort."
Plaintiffs appeal on the theory that their amended complaint alleged the existence of insurance and "further, that regardless of the existence of insurance, or indemnity, that Oak Lawn is subject to tort action and judgment."
In substance, the amended complaint alleges that plaintiffs purchased tickets to a dance recital promoted by defendant Esther Girvin, and attended the recital on June 7, 1958, at the boys' gymnasium in the Oak Lawn school. Defendant Oak Lawn provided the stands in the gymnasium for the recital. At intermission time, plaintiffs started to descend from the stands, and the stands shook and sagged, and Julia Johnston fell through a gap in the railing at the edge of the stands and was seriously injured.
Plaintiffs also alleged, on information and belief, "that a certain contract was entered into between the two defendants herein, whereby certain insurance was provided for the protection of said defendants against negligent acts, and particularly indemnifying the said defendant, Oak Lawn Community High School District 229, in the renting, hiring, or loaning of its gymnasium or auditorium for hire or otherwise, and which said insurance was provided for, and intended to provide for, protection of its customers, including plaintiffs herein, from negligent acts or omissions." Plaintiffs asked judgment in the sum of $50,000, "or the maximum amount provided for under the terms of the insurance policy alleged hereinbefore."
Oak Lawn's motion to dismiss the amended complaint was supported by an affidavit, which included a copy of the rental agreement entered into by defendants Oak Lawn and Esther Girvin for the use of the boys' gymnasium, which agreement included the following clause: "The undersigned further agrees to save and hold harmless, and to reimburse the Board of Education of Community High School District Number 229 with respect to any claims, suits, attorney's fees, and any other expenses which may arise due to personal injury or property damage suffered or incurred in connection with the above use of the school facilities by the undersigned."
Plaintiffs did not file any counteraffidavits, and the trial court dismissed the amended complaint as to defendant Oak Lawn, with prejudice. Included in the record is a "Bill of Exceptions," signed by the trial judge, in which it is recited that the court "held that said contract was indemnity of the defendant School District and not insurance and that defendant School District did not have insurance coverage as a result of said indemnity, and that said defendant, Oak Lawn Community High School District No. 229 should be dismissed as a party defendant." An order was entered that there was no just reason for delaying the enforcement or appeal of the order, and plaintiffs appeal.
Initially, we note the date of the occurrence here was June 7, 1958, and prior to Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959). Consequently, the instant case comes within the doctrine of school district immunity as established and construed prior to Molitor v. Kaneland, where it is said (p 26):
"For this reason we feel justice will best be served by holding that, except as to the plaintiff in the instant case, the rule herein established shall apply only to cases arising out of future occurrences. This result is in accord with a substantial line of authority embodying the theory that an overruling decision should be given only prospective operation whenever injustice or hardship due to reliance on the overruled decisions would thereby be averted."
Therefore, we believe that the pronouncements made in Moore v. Moyle, 405 Ill. 555, 92 N.E.2d 81 (1950), and Thomas v. Broadlands Community Consol. School Dist. No. 201, 348 Ill. App. 567, 109 N.E.2d 636 (1952), that charitable corporations and school districts are subject to tort liability to the extent that liability insurance is available to protect the charitable trust fund and the public school funds, are in point here.
In Moore v. Moyle, the court said (p 564):
"Simply stated, the decision in the Parks case is merely that recovery is denied on the grounds of necessity for the protection of trust funds."
"We are of the opinion that the exemption or immunity which has been afforded a charitable institution should go no further than to protect its trust funds from being taken to satisfy its liability for the tortious acts of its agents or servants. . . . We are of the opinion there is no justification for absolute immunity if the trust is protected, because that has been the reason for the rule of absolute immunity. Reason and justice require an ...