Joseph Burns v. State of Illinois

JOSEPH BURNS, Claimant, vs. STATE OF ILLINOIS, Respondent.

Opinion filed September 7, 1961.

LEONARD, HOELLEN AND RASZUS, Attorneys for Claimant.

IVAN A. ELLIOTT, Attorney General; C. ARTHUR NEBEL,Assistant Attorney General, for Respondent.

ILLINOIS N ATIONAL GuAm-Negligence-when an award will be denied. Where undisputed evidence showed that the driver of a National Guard jeep had no authority to use it, and was not on government business, he was not an agent of the State of Illinois, and claim based on negligence of driver will be denied.

SCHUMAN, C. J .

Claimant, Joseph Burns, while on duty as a police officer for the City of Chicago on July 27, 1948, was [*30]

struck by an Illinois National Guard jeep driven by

Sergeant James T. O’Connor of the 109th A.A.A.

Brigade, Fort Sheridan, Illinois, and sustained rather

severe personal injuries.

The complaint alleges that Sergeant 0’Connor

was operating the jeep as an agent of the State of

Illinois, and charges certain specific acts of negligence.

The first question to determine is whether Ser

geant O’Connor was an agent of the State, and on its business; or in the scope of any agency at the time of the accident and resultant injuries to the claimant.

The undisputed evidence shows that Sergeant O’Connor did not have competent authority to use the jeep, identified as “Government Vehicle # 20136574”,

and that he was not on official government business, and, hence, not in the line of duty. The evidence showed that Sergeant Nester had issued to Sergeant O’Connor two off post passes, but none to use any

government vehicle.

It is apparent from the record that Sergeant O’Connor did not have proper authority to use the government jeep, nor was he on any lawful business authorized by any of his superiors, or in the line of duty.

Claimant cites the case Hansen vs. State, 6 G.C.R. 548, in which an airplane on an authorized flight crashed into an automobile; and the case of Gyenes vs. State, 9 C.C.R. 185, in which a National Guardsman, while on active duty, killed a man, and the Court allowed an award, because the statutes exempted the guardsman from any liability. The above cases were both predicated on evidence showing acts, which, occurred in active discharge of duties. For this reason, these cases are not in point.

[*31] The complaint herein is based on the negligence of Sergeant O'Connor, and the fact that he was an agent of the State. There is no proof of any agency in this record, and for this reason the claim will be denied. Moreover, the evidence clearly shows that Sergeant O'Connor used the jeep for purely personal reasons.

The Court recognizes the injuries sustained by claimant, but he will be confined to his remedy against Sergeant O'Connor.

Claim denied.