(No. 1817

#### Lawrence Baie, Claimant, vs. State of Illinois, Respondent.

Opinion filed October 17, 1935.

Dennis J. Collins, for claimant.

Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.

Mr. Justice Yantis

delivered the opinion of the court:

Claimant alleges that on July 12, 1930, a team of horses rented of him by one Henry Ederer, a patrolman employed by the State Highway Department of the State of Illinois on Route No. 71, was then and there being used by Ederer in mowing weeds; that one of the horses slipped on the embankment, fell, broke its leg and had to be shot. Claim is filed for payment .of $125.00 alleged to be the value of the horse.

There is no theory under which this court could justify an award in this ease. The team was rented by Ederer from Baie, for mutual benefit, and was not contracted for by the State. The injury to the horse was due to no outside agency or action.

> *104“In bailments for mutual benefit the bailee is bound to use but ordinary care, and if the thing bailed is lost or destroyed without his fault the loss must fall on the owner.”

> Standard Brewery vs. Bemis & Curtis Malting Co. 171 Ill. 602.

> Saunders vs. Hartsook, 85 Ill. App. 55.

There being no statute making the State liable for claims of this character, and no ground of legal liability existing, this court is without authority to make an award for the damages claimed. Motion to dismiss is allowed and as no amendment could enhance the rights of plaintiff to an award, the claim is dismissed.