(No. 1096

Claimant awarded $4,350.00.)

#### Etta Klein, et al., Claimant, *vs.*State of Illinois, Respondent.

*Opinion filed March 29,*1927.

Governmental *function*— when *State not liable.*The State in conducting its State penitentiary exercises a governmental function and is not liable for injuries sustained by its employees while in the discharge of their duty.

Social justice and *equity*— award *may be made.*Although no legal liability exists against the State, yet where its employee is injured while in the discharge of his duty, an award may be made to him, as a matter of social justice and equity.

Martin & Martin, for claimant.

Oscar E. Carlstrom, Attorney General ; Roy D. Johnson, Assistant Attorney General, for respondent.

Mr. Justice Leech

delivered the opinion of the court:

This is a case arising out of the killing of Peter 1ST. Klein, deputy warden of Joliet penitentiary, by inmates thereof, on May 5,1926. The declaration'filed by claimants on November 17, 1926, seeks a recovery against the State by.the widow and two minor children of Peter N. Klein, deceased, who came to his death on May 5, 1926, in the Solitary building at the new penitentiary as a result of injuries received at the hands of seven convicts, Torrez, Bizo, Shader, Price, Stalensky, Boa and Duchowski, inmates of the new penitentiary, while the decedent, who was an employee of the State, was engaged in the performance of his duties as deputy warden of said penitentiary. The declaration further sets forth that decedent was deputy warden for the period from February 4, 1924, to May 5,1926, the date of his death; that under the directions of the warden, John L. Whitman, during said time he was in charge of the new penitentiary and performing many of the duties of the warden therein; that while engaged in the duty of interviewing convicts who had complaints to make, he was assaulted and killed, without any excuse or justification, by the seven convicts above mentioned, in a most cruel and brutal manner, while he was in the exercise of due care and caution for his own safety; that decedent left him surviving Etta Klein, his widow, and Donald Klein, aged 11 years on June 19, 1926, and Chelsea Klein, aged 7 years on November 20, 1925; that he left no property of any value other than his hpusehold furniture and an automobile; that his widow and children have no other property, and that his widow has no *319means of earning a livelihood except by her manual labor; that decedent at his death was in good health, of the age of 47 years, and had been earning $208.33 per month, and in addition thereto was furnished with living quarters and food for himself and his family.

To the declaration, the Attorney General of the State of Illinois filed a demurrer, which is sustained, as a matter of law.

Although there is no legal liability where a State employee is injured while in the performance of his duty, in a case of this kind, we feel that in equity and good conscience the widow and minor children should receive some compensation on account of the loss of the husband and father, and we accord- . ingly award the maximum amount provided under the Workmen’s Compensation Act of the State of Illinois, or the sum of $4,350.00.