(No. 2761

#### Karl Lissak, Claimant, vs. State of Illinois, Respondent.

Opinion filed January 13, 1941.

Lloyd H. Melton, for claimant.

John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.

Mr, Justice Linscott

delivered the opinion of the court:

Claimant seeks to recover damages to his automobile occasioned by a collision thereof with a truck driven by a man named Pat Slayden, four miles west of the Village of Nashville, Illinois. Claimant alleges that a construction crew of the State Highway Department was doing work on the road and as the claimant was driving very slowly, a watchman *365signaled for him to proceed and he did proceed and attempted to pass the construction crew, and while passing a large truck that was in the act of receiving a load, the driver of the truck, Pat Slayden, suddenly and without any warning drove his truck forward in such manner that it collided with claimant’s car, and damaged claimant’s car to the extent of Fifty Dollars ($50.00). An itemized statement of account is attached to the complaint filed herein.

Counsel for the State has made a motion to dismiss and this motion must be sustained, first, on the grounds that there is no averment that the driver of the truck was an agent of the State; and second, because, as we have often said, in the construction and maintenance of its roads, the State acts in a governmental capacity, and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.

> Morrissey vs. State of Illinois, 2 C. C. R. 454;

> Minear vs. State Board of Agriculture, 259 Ill. 549;

> Bucholz, Admx. vs. State, 7 C. C. R. 241.

For these reasons an award will be denied.