Appeal by plaintiff from the Circuit Court of Kane county; the
Hon. CHARLES A. O'CONNOR, Judge, presiding. Heard in this court
at the October term, 1951. Judgment affirmed. Opinion filed March
4, 1952. Released for publication March 24, 1952.
MR. PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
From an appropriate judgment rendered upon a motion of the defendant for judgment on the pleadings by the circuit court of Kane county in bar of the action of the plaintiff, the plaintiff appeals.
The verified complaint, as amended, consists of five Counts. Count one alleges that on and prior to January 14, 1949, the defendant, Virgil State Bank, was a duly organized Illinois banking corporation carrying on a banking business in the Village of Virgil, Kane county, Illinois; that plaintiff was and had been a regular customer of the defendant and on that day entered the premises of the defendant for the purpose of transacting business therein as a customer or invitee of the defendant and was in the exercise of ordinary care for his own safety; that on said date and for a long time prior thereto defendant had expressly or impliedly undertaken to safeguard the regular customers of the bank while upon its premises from the danger of injury or loss due to armed robbery and having so undertaken, it became and was the duty of the defendant to carry out such undertaking and to exercise ordinary care in carrying out such undertaking and to protect plaintiff and its other customers from injury; that notwithstanding its said duty, the defendant negligently and carelessly failed to take sufficient precautions so as to safeguard the regular customers of the bank, while upon its premises, from the danger of injury or loss due to armed robbery and as a direct and proximate result of the aforesaid negligence and carelessness, two armed robbers, on the said date, entered defendant's premises and attempted to rob the bank, and one of the said robbers fired a bullet which struck the plaintiff and as a direct and proximate result thereof plaintiff was injured and permanently disabled.
The second Count repeated many of the allegations of the first Count with reference to the plaintiff's presence in the bank and the injuries he sustained and charged that on January 14, 1949, and for a long time prior thereto, the defendant had known or in the exercise of reasonable care should have known that there was a danger that the regular customers of the bank while upon its premises would be injured or suffer loss due to armed robbery, and that it then and there became and was the duty of the defendant to safeguard its customers against such known danger and to exercise ordinary care in so doing.
Count three alleged that the defendant by its agents or servants wilfully and wantonly failed to take sufficient precautions so as to safeguard the regular customers of the bank while upon its premises from the danger of injury or loss due to armed robbery and that as a direct and proximate result of the aforesaid wilful and wanton misconduct, two armed robbers, on January 14, 1949, entered the defendant's premises and attempted to rob the bank and in so doing one of the said robbers fired a bullet which struck and injured the plaintiff.
Count four realleges the duty of the defendant to exercise ordinary care in safeguarding its customers from armed robbery and then charges that the defendant wilfully and wantonly failed to take sufficient precautions to so safeguard its regular customers and concludes that as a result of such failure plaintiff was shot and injured by one of the robbers.
Count five, after alleging that the plaintiff was in the exercise of due care upon the occasion in question, charges that on or before January 14, 1949, the defendant had represented, warranted, and promised expressly or impliedly, through the actions of its duly authorized officers, directors, agents and servants, that it would at all times exercise the highest degree of care for the safety of the plaintiff and its other regular customers, and that the premises of the defendant would at all times be a safe place to transact business with the bank; that said representations, warranties and promises were made in consideration of the continued patronage of its customers, including the plaintiff; that on or before said date the defendant had known of the danger of armed robbery and had undertaken to station at its door a guard who was to admit only the regular customers of the bank, upon the instruction of the cashier, a duly authorized officer and director of the bank, and that the said undertaking was made known to the plaintiff and other regular customers of the bank as an invitation to the plaintiff and other regular customers of the bank to continue to transact their business therein, and in reliance thereupon, the plaintiff did continue to transact business in and with the bank, and was lawfully upon the premises of the bank on the date and occasion in question; that had the defendant carried out its aforesaid representations, warranties and promises, and had the defendant fulfilled its aforesaid undertaking, the plaintiff would today be in good health and would not have been injured; that the defendant, with knowledge of the probable consequences, failed and neglected to perform and carry out said representations, warranties and promises and failed to fulfill its aforesaid undertaking and took insufficient care for the safety of the plaintiff and its other customers so that the premises of the defendant were not a safe place to transact business in and with the bank. This Count then charges that the defendant permitted two armed robbers to enter the banking premises on the aforesaid date, without identification as regular customers, and without the instruction of the cashier, at a time when the plaintiff and other regular customers of the bank were upon the said premises in reliance upon the aforesaid undertaking. This Count concludes by charging that as a direct result of the conduct of the defendant, as alleged, two armed bandits entered the premises of defendant on January 14, 1949, and in an attempt to rob the bank, fired a gun at the plaintiff, resulting in plaintiff's injuries for which he demanded judgment for one hundred thousand dollars.
The sufficiency of this complaint, or any Count thereof, to state a cause of action was challenged by defendant's motion for judgment. In their brief counsel for appellant say: "This is a suit against a bank corporation for injuries sustained by appellant while lawfully upon the bank's premises. The injuries resulted from the criminal act of a bank robber, who fired a gun at appellant in the course of a bank robbery. Obviously the mere facts of a robbery happening in a bank, and resulting injury to a bank customer are insufficient grounds to predicate liability of the bank for the injuries. As appellee might point out the bank is not an insurer of the safety of its patrons." Counsel insist, however, that Counts one and three state a good cause of action in tort against appellee on the basis of a duty assumed by the bank and that the duty alleged to have been assumed by the bank was to safeguard the plaintiff, as a customer of the bank, from injury by a bank robber while he, the plaintiff, was on the bank's premises. Counts one and three do so allege, and Count one charges that this duty was breached by the bank by failing, negligently and carelessly, to take sufficient precautions to safeguard the plaintiff while on the bank's premises from the danger of being injured by an armed robber, while Count three alleges that this duty was breached by the bank by wilfully and wantonly failing to take sufficient precautions to safeguard the plaintiff while on the bank's premises from the danger of being injured by an armed robber.
[1-3] In our opinion, neither of these Counts state a cause of action. It is not sufficient that the complaint allege a duty. The pleader must allege facts from which the law will raise a duty. The duty which the law raises from the facts alleged in these Counts is that defendant must exercise ordinary care to safeguard the person of the plaintiff from injury while on its premises. No facts are alleged from which any one could conclude that defendant did not discharge this duty to the plaintiff. The allegation that defendant failed to take sufficient precautions to safeguard the plaintiff is a conclusion of the pleader, and charging that the defendant "negligently and carelessly" and "wilfully and wantonly" failed to take sufficient precautions to safeguard the plaintiff are simply conclusions of the pleader. Good pleading requires that facts must be alleged from which the law will raise a duty and facts must then be alleged showing an omission of that duty and resulting injury. (Overstreet v. Illinois Power & Light Corp., 356 Ill. 378, 383, 384; Hart v. Washington Park Club, 157 Ill. 9, 14.)
Counsel for appellant also insist that Counts two and four state a cause of action on the basis of a known danger. The second Count charges that the defendant knew, or should have known, that the plaintiff, while on the bank's premises, would be injured due to armed robbery; that it therefore became the duty of the defendant to exercise ordinary care to safeguard the plaintiff against such danger and alleges that the defendant breached this duty by negligently and carelessly failing to take sufficient precautions to safeguard the plaintiff from injury due to armed robbery. The fourth Count charges that the defendant wilfully and wantonly failed to take sufficient precautions to safeguard the plaintiff. What we have said with reference to Counts one and three likewise applies to these Counts. No facts are alleged which bring the right of recovery under any of these Counts within any statutory or common-law rule of liability.
[5-7] Count five, according to appellant's brief, is a complete contractual cause of action setting up "an alternative cause of action entitling appellant to elect at a later stage in this proceeding which count to rely upon." What this Count alleges is that the defendant expressly or impliedly represented and promised that it would at all times exercise the highest degree of care for the safety of the plaintiff and that its premises would be a safe place for the plaintiff to transact business with the bank; that on and before January 14, 1949, the defendant had known of the danger of armed robbery and had stationed a guard at its door who was to admit only regular customers of the bank; that this guard permitted two armed robbers to enter the bank without identification as regular customers and in an attempt to rob the bank fired a gun at the plaintiff and injured him. This Count alleges that the contractual undertaking of the defendant with the plaintiff was to exercise the highest degree of care for the safety of the plaintiff and to keep its premises a safe place for the transaction of his banking business and in order to do so it stationed a guard at the entrance door instructed to admit only regular customers of the bank. In the absence of any averment that the bank either directly or indirectly derived any benefit by reason of the misconduct charged against it and where it does not appear that there has been any enrichment of the wrong-doer emanating from the wrongful act committed by him, an injured party may not waive the tort and sue upon a breach of an express or implied contract. (Howard v. Swift, 356 Ill. 80, 85; In re Estate of Thomas, 333 Ill. App. 238.) Furthermore, assuming that this Count alleges a contractual undertaking on the part of the defendant that it would keep its premises a safe place for the plaintiff and would safeguard plaintiff from any injury inflicted by a bank robber, such a contractual undertaking would be beyond the powers expressly or impliedly conferred by the statute under which defendant is organized and doing business. (Knass v. Madison & Kedzie Bank, 354 Ill. 554, 561.) The Knass case denied the power of a bank to enter into a contract for the sale and repurchase of securities. In our opinion, a contingent liability agreement which would guarantee the absolute safety of the plaintiff upon defendant's premises would be ultra vires the bank, as it would be an undertaking not authorized by statute and which would clearly imperil the rights of its depositors.
Counsel, in support of their contention that some of the Counts state a cause of action, call our attention to the case of Neering v. Illinois Central R. Co., 383 Ill. 366, where it appeared that plaintiff was assaulted by an unknown man while awaiting the arrival of a train at the Riverdale station of defendant's railroad. The complaint charged that defendant failed to afford her the degree of protection required from dangers of which it had knowledge or which, in the exercise of due care and diligence, it could have reasonably anticipated and provided against. In its opinion, the court stated that the decisive question in the case was whether or not the defendant in knowingly allowing hoboes, tramps and vagrants to loiter about its station and to sleep in its waiting room created a condition which became a menace to the public peace and to patrons who used its passenger station, and that from such condition could the defendant reasonably anticipate some unlawful act might be committed on patrons using its passenger station? In answering this question in the affirmative, the court, in the course of its opinion, said (pp. 376-7): "The law recognizes, and it is generally understood, that where lawbreakers congregate they are dangerous to society and are likely to break other laws, and we do not see how it could reasonably be said when vagrants are permitted to congregate they will not become a menace to the public peace or that under such conditions one could not reasonably anticipate they might commit some unlawful act or become dangerous to society. It necessarily follows that, when such a condition is permitted to exist at a passenger station, reasonable and ordinary precaution must be observed for the protection of persons who are patrons of the road and using its passenger station." It was insisted that the defendant railroad company had no knowledge and could not reasonably anticipate that vagrants or any other person would assault plaintiff, and counsel called the attention of the court to the fact that the evidence disclosed that plaintiff had been using the station for a long time and had not been assaulted and that no assault by vagrants had been shown to have been made on other passengers using the station. Answering this contention, the court said: (p. 377) "Of course, if defendant had known plaintiff would be assaulted, and made no effort for her protection, certainly there would have been a failure on its part to exercise reasonable and ordinary care. The question however, is, from the conditions which defendant permitted to exist around its station, could it reasonably anticipate that plaintiff might be assaulted and as a consequence observe reasonable precaution to prevent it. It is our judgment the conditions were such that defendant ought reasonably to have anticipated plaintiff might be assaulted and that there is some evidence that reasonable precaution was not taken for her protection." The court then held that the evidence found in the record did tend to establish plaintiff's cause of action and concluded: (p. 382) "It is fundamental that plaintiff could recover only by proof of specific charges of negligence made in her complaint, and it must further appear that such negligence proximately contributed to or caused the injuries for the damages here sought. It is also fundamental that proof of negligence consists of showing a duty to the person injured, a breach of that duty and an injury proximately resulting from such breach. Here the duty charged against defendant was its duty to afford protection to passengers, including plaintiff, from dangers of which it had knowledge or which, in the exercise of due care and diligence, it could have reasonably anticipated and provided against."
Counsel for appellant say they realize there are detailed differences in the facts in the Neering case from the allegations of the complaint in the instant case but insist that the legal principles applied in the Neering case are applicable here. Counsel argue that the bank knew, or should have known, that there was danger of injury to its patrons in the event of an armed robbery and it, therefore, had a duty to afford adequate protection to appellant. In the Neering case, as in the instant case, the plaintiff was injured by the criminal act of one not in the employ of the defendant. In the Neering case, however, it appeared that the defendant had knowledge that lawbreakers, hoboes, tramps and vagrants loitered about its premises and slept in its passenger waiting room, and what the court held in the Neering case was that from such conditions the company could reasonably anticipate that some unlawful act might be committed upon its patrons and that the evidence disclosed that under the conditions shown to exist, reasonable precaution had not been taken by the company for the protection of the plaintiff. There is no charge ...