Powers v. Telander

• Court: Appellate Court of Illinois
• Writing for the Court: THOMAS J. MORAN; DAVIS, P.J., and ABRAHAMSON
• Citation: Powers v. Telander, 262 N.E.2d 342, 129 Ill.App.2d 10 (Ill. App. 1970)
• Decision Date: 11 September 1970
• Docket Number: No. 2,Gen. No. 70--1,2
• Parties: Larry Allen POWERS, a minor, by Mary Ann Powers, his mother and next friend, and Kenton L. Powers, individually, Appellants, v. Larry S. TELANDER, Carol Hollenbaugh, George R. Schroeder, Winnebago County Superintendent of Highways, County of Winnebago, District Engineer, Division of Highways, District, and Department of Public Works and Buildings, Appellees.

Page 342

262 N.E.2d 342

129 Ill.App.2d 10

Larry Allen POWERS, a minor, by Mary Ann Powers, his mother and next friend, and Kenton L. Powers individually, Appellants, v. Larry S. TELANDER, Carol Hollenbaugh, George R. Schroeder Winnebago County Superintendent of Highways, County of Winnebago, District Engineer, Division of Highways, District No. 2, and Department of Public Works and Buildings, Appellees.

Gen. No. 70--1.

Appellate Court of Illinois, Second District.

Sept. 11, 1970.

Maynard & Brassfield, Rockford, for appellants.

William J. Scott, Atty. Gen., Francis T. Crowe, Asst. Atty. Gen., Chicago, for appellees.

THOMAS J. MORAN, Justice.

The plaintiffs brought suit against, among others, the District Engineer, Division of Highways, District #2 and Department of Public Works and Buildings for personal injuries occurring on a State highway in Winnebago County, Illinois.

The State entered a special and limited appearance and moved for a dismissal of the action as to the above named defendants on the grounds that the trial court was without jurisdiction. The motion was founded upon Article IV, Section 26 of the Illinois Constitution, S.H.A. which states: 'The State of Illinois shall never be made defendant in any court of law or equity'. The motion was allowed and the court found no just reason for delaying enforcement or appeal of its order. Consequently, this appeal followed.

The complaint, as it concerns the two named defendants, alleged that they were insured at the time of the occurrence; the policy of insurance waived the constitutional prohibition set forth above and the policy fully and adequately protects the defendants from any personal liability arising out of the lawsuit.

Plaintiffs position on appeal is that (1) Article IV, Section 26 of our constitution is not an absolute prohibition, but an available defense depending upon whether the relief sought would or would not adversely affect the State, and (2) since the constitutional provision was waived by the terms of the insurance policy, the defendants were subject to the jurisdiction of the court.

Plaintiffs do not seek to attack the constitutional prohibition but desire to avail themselves of the doctrines expressed in Moore v. Moyle, 405 Ill. 555, 92 N.E.2d 81 (1950) and Molitor v. Kaneland Com. Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89 (1959). In Moore, complete immunity from tort liability of charitable institutions was overturned and in Molitor the same result was accomplished with regard to governmental agencies.

Prior to Moore, the rule of law exempting charitable institutions from liability for negligent acts of its servants was bottomed upon the theory that to allow recovery would in effect divert the corpus of the trust to purposes other than those intended by the donor. Parks v. Northwestern University, 218 Ill. 381, 75 N.E. 991, 2 L.R.A.,N.S., 556 (1905). Since Parks, but before Moore, districts of the Appellate Court differed as to whether such immunity was absolute when the pleadings disclosed liability insurance. See, Myers v. Y.M.C.A. of Quincy, Ill., 316 Ill.App. 177, 44 N.E.2d 755 (1942); Piper v. Epstein, 326 Ill.App. 400, 62 N.E.2d 139 (1945), and Wendt v. Servite Fathers, 332 Ill.App. 618, 76 N.E.2d 342 (1947).

However, with Moore, the Court, after affirming the principle enunciated in Parks (trust funds of charitable institutions are immune from liability arising out of torts committed by its servants), extended the rule by eradicating absolute immunity and allowing recovery where it could be shown that the corpus of the trust would not be impaired or depleted. (However, see the comment in Molitor, supra, pp. 19--20, 163 N.E.2d 89).

Prior to Molitor, sovereign immunity from tort liability was extended from the State to local governmental units by court decisions. The decisions reasoned that protection of public funds in governmental immunity cases was as essential as protection of trust funds in charitable immunity cases. However, Molitor discarded the protection of public funds theory.

In Moore, the complaint alleged that the charitable institution involved was fully insured and its trust funds would not be affected (same as the instant case). In Molitor, there was no similar allegation. However, both cases were alike in at least two respects, they both involved tort immunity and this immunity was created by the courts. In the case at bar, the immunity in question originated in the Illinois constitution.

Plaintiffs suggest that we examine the constitutional provision with the same progressive reasoning as the Supreme Court applied in Moore and Molitor. It is argued that if we were to apply the rule of law found in Moore (that charitable institutions do not enjoy absolute immunity) to the provision in question; then add the language found in Molitor (that protection of public funds is not a valid reason in today's society for continuing the immunity rule), especially where, as in the instant case, there is insurance coverage, we would then conclude that the plaintiffs could maintain their suit against the defendants.

What the plaintiffs seem to have overlooked is the fact that we are here concerned with a constitutional prohibition and not a court created rule of law. It is our duty to interpret the constitution, not overrule it by avoiding its plain language. It is our opinion...