(No. 1071

#### Samuel G. Harris, Claimant, vs. State of Illinois, Respondent.

Opinion filed January 15, 1929.

Charles J. Jenkins, for claimant.

Oscar E. Carlstbom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.

Mr. Justice Leech

delivered the opinion of the court:

This is a claim filed by Samuel G. Harris, plaintiff, seting forth that on the 24th day of August, A. D. 1925, the defendant was possessed of a certain trench gun and shell; and that on said day or prior thereto the said State of Illinois by its duly authorized agent had caused said trench gun and shell to be sent to Howitzer Company of the Eighth Regiment Illinois National Guard then holding practice at Camp Grant, Rockford, Illinois, for and in order that said company might use the said trench gun and shell for practice shooting.

That the plaintiff was then and there a regularly enlisted soldier in said company of the rank of first lieutenant and was in the actual discharge of his duties as such and was then and there exercising all due care and caution for his own safety and for the safety of the members of his company and * of the other soldiers and the spectators then and there upon the field.

*122That the defendant by its agent negligently sent said trench gun to the plaintiff’s company for nse as a practice gun and same being then and there defective and that by reason of said negligence and said defective gnn when a shell was placed therein by the soldiers then and there under the command of Captain Osceola Browning said shell did then and there .explode in said trench gun and that steel parts of said trench gun and -shell did then and there strike the plaintiff with great force and violence and did then and there knock the plaintiff down to and upon the ground there and did grievously hurt, bruise and wound the plaintiff and inflicted divers wounds upon the plaintiff’s arms and body; that plaintiff still has two pieces of shrapnel lodged in his body, two pieces of shrapnel lodged in his right arm and one piece lodged in his left arm, and by reason of said bruising, hurting and wounding of the plaintiff,, the plaintiff then and there became lame, sick, sore and disordered and so continued for a long time.

That the plaintiff while not on actual duty as a lieutenant in said Eighth Regiment Illinois National Guard is employed as a clerk in the United States Post Office and earns therefrom a salary of One Hundred Seventy-five Dollars ($175.00) per month; that during all of said time to-wit from thence hitherto was rendered totally incapable of following his occupation and of transacting his business by him during that time.to be done; and also thereby'the'plaintiff during the time since said explosion aforesaid to the date hereof was rendered and is totally incapable of following his occupation and of transacting his business by him during that- time to be done and also thereby the plaintiff became and wa's sick, sore, and disordered as aforesaid; and that the plaintiff further shows-that he has always been a good soldier with a clean record and has been a member of the Eighth Regiment National Guard seven years. l

■ The Attorney General filed a demurrer to the declaration which as a matter of law is sustained.

The Attorney General also filed a statement as follows:

“The claimant.in his statement, brief and argument makes a correct statement of the. facts and the. law and properly applies the same in his argument.

*123“I, therefore, submit this claim to the court for such disposition that they care to make. If the court makes an allowance in this claim in accordance with the allowances made in other claims involved in the same fact, this claimant is entitled to $3,750.00.”

The court, therefore, awards the claimant the sum of $3,-750.00.