
    (No. 5338
    The Home Insurance Company, as Subrogee of McGuire Equipment Company, Claimant, vs. State of Illinois, Respondent.
    
      Opinion filed August 16, 1967.
    
    Clausen, Hirsh, Miller and Gorman, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, as subrogee of McGuire Equipment Company, seeks to recover the sum of $564.45, the cost of repairing certain equipment leased by the State of Illinois Department of Public Works and Buildings, Division of Highways, from the McGuire Equipment Company. Claimant charges that said leased equipment was in the possession of the State of Illinois, and, while in the possession of the State of Illinois, was damaged on August 2, 1965 to the extent of $564.45. Claimant alleges in clause 4 of its complaint as follows:

“4. Among the terms and conditions of said Lease Agreement is the following language, which is relevant to the present controversy : “Lessee acknowledges that the above equipment is the property of McGuire Equipment Company, Lessor herein; that Lessee has received the equipment in good condition, and will return it in the same condition .... In the event the equipment is lost or damaged, Lessee agrees to pay Lessor the value thereof or the cost of repairing same, and, if Lessee is in default in rental or in any terms hereunder, Lessor may take possession of said equipment wherever located, remove the same, and Lessee shall be liable for all costs and attorney fees connected therewith.”

Subsequently claimant obtained leave to amend its complaint to add Count II alleging that a bailment existed between claimant and respondent.

On June 21, 1967, claimant and respondent, by their respective attorneys, filed with this Court a stipulation of facts, which reads as follows:

“Claimant, The Home Insurance Company, as Subrogee of McGuire Equipment Company, by its attorneys, Clausen, Hirsh, Miller and Gorman, and the State of Illinois, by William G. Clark, Attorney General of the State of Illinois, its attorney, hereby stipulate and agree to the following facts:

“That equipment was delivered to respondent at the special instance and request of the Department of Public Works and Buildings.
“That the statements attached to the complaint as exhibit A are due and owing in the sum of $564.45.
“That no assignment or transfer of the claim has been made.
“That there is rightfully due to claimant the sum of $564.45.
“That upon the foregoing agreed case filed herein, the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved up upon the trial of said issue.”

From the aforesaid stipulation of facts, the record, and other matters before this Court it appears that McGuire Equipment Company did lease to the State of Illinois Department of Public Works and Buildings, Division of Highways, a piece of equipment. It further appears that said equipment was returned to the said McGuire Equipment Company in a damaged condition after it had been in the exclusive possession of the Division of Highways. It further appears that claimant, The Home Insurance Company, as insurer of certain risks on behalf of McGuire Equipment Company, was called upon, and did pay the sum of $564.45 for repair of the aforementioned damaged equipment, and was necessarily subrogated to any right of McGuire Equipment Company to recover from respondent for such repairs.

Claimant is hereby awarded the sum of $564.45.  