APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 20, 1957.
This case poses questions concerning the validity of section 1-15 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1955, chap. 24, par. 1-15) and the nature and extent of the liability thereunder. Section 1-15 applies only to the city of Chicago and provides in essence that in case of any injury to person or property caused by a member of the police department while engaged in the performance of his duties as a policeman, and without the contributory negligence of the injured person, the city shall indemnify the policeman for any judgment recovered against him as the result of such injury, except where the injury results from wilful misconduct of the policeman.
The plaintiff, William Karas, obtained a judgment against the defendant John Snell, and brought an action against the defendants, Snell and the city of Chicago, seeking a declaratory judgment that Snell had a right to be indemnified by the city in the sum of $169,900 with interest for the judgment which he obtained against Snell, and that the plaintiff had the right to recover said sum to satisfy the judgment. Snell filed a counterclaim in the declaratory judgment proceeding seeking indemnity from the city. On January 27, 1956, a summary judgment was entered on the pleadings and supporting affidavits declaring that the city of Chicago was liable to Snell for the use and benefit of the plaintiff, Karas, in the sum of $169,900. On February 24, 1956, a judgment was entered declaring that the city of Chicago had failed to pay the amount declared due and that Snell should have and recover from the city of Chicago for the use and benefit of the plaintiff, the sum of $194,529.62. The city appealed from both judgments.
The city, in its pleadings in the trial court, and upon this appeal questions the constitutional validity of section 1-15. The constitutional question presented is fairly debatable, and it is directly appealable to this court under section 75 of the Civil Practice Act. (Village of Lansing v. Hacker, 7 Ill.2d 258; Gaca v. City of Chicago, 411 Ill. 146; Mandrake v. Schlaeger, 393 Ill. 610.) It is established that a decision sustaining the constitutionality of a statute is not decisive of its validity against subsequent attacks upon different grounds, where the court has not heretofore considered and passed upon the specific constitutional questions presented. (Grasse v. Dealer's Transport Co. 412 Ill. 179.) This case also involves the construction of section 22 of article IV, and section 10 of article IX of the constitution. The city contends that these sections prohibit Karas from maintaining this suit, and thereby a further basis for direct appeal to this court is established under section 75 of the Civil Practice Act. 222 East Chestnut St. Corp. v. Berger, 3 Ill.2d 32; Atkins v. Atkins, 386 Ill. 345.
On December 1, 1950, Snell, while employed as a police officer of the city of Chicago, entered the Seven Seas Restaurant, an eating place and tavern in the city of Chicago, shot Karas in the head and permanently blinded him. Thereafter on July 18, 1951, Karas filed a suit in the circuit court of Cook County against Snell and the owners and operators of the Cadillac Lounge and the Streamliner Grill. Count I stated a cause of action under the Liquor Control Act and alleged that the injury to Karas proximately resulted from the intoxication of Snell. Count II of the complaint was against Snell alone, and alleged in paragraph 1 that Snell, as a direct and proximate result of an intoxicated condition did assault Karas with force and arms without any provocation. Paragraph 4 also charged intoxication resulting in the negligent discharge of the pistol. Paragraphs 2 and 3 charged the mere negligent discharge of the pistol. Count I, the dramshop count, was dismissed as to Snell and later settled and dismissed as to the other defendants. At the close of all the evidence, the record discloses that paragraphs 1 and 4 of count II, the only paragraphs charging intoxication or wilful wanton misconduct, were stricken on motion of Snell, without objection by Karas. On February 26, 1953, the jury in that case returned a verdict based on the negligence charges of the complaint, in favor of Karas and against Snell in the sum of $169,900.
Thereafter, on March 18, 1954, Karas filed his verified complaint for declaratory judgment, the case now before us. This complaint set forth the foregoing facts and further alleged that the cause of action there stated arose on December 1, 1950, in the city of Chicago when Snell was a police officer engaged in the performance of his duties as a policeman and while arresting or attempting to arrest Karas for a supposed offense against the laws of the State of Illinois or the ordinances of the city of Chicago; that Snell negligently, and without any contributory negligence on the part of Karas, did discharge his pistol, the bullet from which wounded and permanently and totally blinded Karas; that Snell notified the city and its corporation counsel of the pendency of the suit and demanded that the city appear and defend him; that the city had actual knowledge, full notice and ample opportunity to prepare and present any defense that Snell might have had, but nevertheless it did not appear or offer to defend Snell. The complaint further alleged the trial, verdict and judgment, and alleged the service of a writ of execution and the return of no property found; that Snell paid $50 to Karas in satisfaction pro tanto of the judgment against him and that such payment has been so applied by Karas. The complaint then sets forth the alleged accrued right of Snell to be indemnified for and on account of the judgment, and prays for a declaratory judgment, in the alternative, that Snell now has vested an absolute right of indemnity from the city in the sum of $169,900 with interest thereon, and that Karas is entitled to recover that sum for the account of Snell, or that the payment by Snell of $50 to Karas vested in Snell the right to recover the sum of $50 from the city by way of indemnity; and that Karas is entitled to enforce said claim of Snell, and, in order to avoid circuitry of action, Karas is now entitled to recover from the city the full sum of $169,900 with interest thereon.
The city of Chicago filed a motion to dismiss, alleging that neither Karas nor Snell had any right to the relief prayed for; and under section 1-15 there was no liability on the part of the city to indemnify Karas because the injuries complained of were caused by the wilful misconduct of Snell; that the complaint fails to show that the injuries were not due to Snell's wilful misconduct; that there is no liability on the city to indemnify Snell until after he has paid the judgment; that section 1-15 does not give Karas a cause of action against the city; that if section 1-15 creates a direct liability on the city to Karas, it is unconstitutional as being in contravention of sections 22 and 34 of article IV, section 10 of article IX of the Illinois constitution, and the fourteenth amendment of the United States constitution.
Snell filed an answer to the complaint in which he admitted that Karas recovered a judgment against him as alleged; that he was acting as a policeman of the city of Chicago when he arrested Karas; that he shot and injured Karas in attempting to arrest him, and that judgment was recovered against him and in favor of Karas based on such injuries; that he was not guilty of wilful and wanton misconduct; that he paid the plaintiff $50 on said judgment; and that an execution against him was returned no part satisfied.
Snell also filed a counterclaim against the city for the use of Karas, alleging the entry of judgment against him; that the judgment was for injuries inflicted on Karas by him while acting as a policeman, and while attempting to arrest Karas; that he was not guilty of wilful and wanton conduct; that under section 1-15 the city must pay the judgment against him even though he has not paid it; that the city had knowledge of the suit against him and although requested to defend him, had refused to do so; and that said judgment is conclusive against the city.
The city's motion to dismiss was denied and thereafter the city filed a verified answer to the complaint alleging that the original action of Karas against Snell stated a cause of action under the Liquor Control Act and charged Snell with wilful and wanton acts while intoxicated; that Snell was not on duty as a policeman at the time he injured Karas; that it was notified of the pendency of said action but that it refused to defend Snell because at the time Snell injured Karas he was not on duty as a policeman and in the complaint Snell was charged with wilful misconduct; that under section 1-15, the city is not liable for the wilful misconduct of a policeman even on duty; that under section 1-15, Karas is not entitled to enforce any claim of Snell against the city; that the complaint fails to show that the injuries inflicted on Karas by Snell were not wilful; that under section 1-15, no rights accrue to Snell until he has paid the judgment; that the city is not an insurer of Snell and is required to indemnify him only after he has paid the judgment; that Karas is not entitled to a declaratory or any other judgment against the city; and that this case involves the validity of section 1-15.
The city filed an answer to Snell's amended counterclaim setting up essentially the same defenses as contained in the answer to the complaint. Further answering, the city alleged that it refused to appear and defend Snell in said cause for the reason that its investigation disclosed that the injury to Karas resulted from the wilful misconduct of Snell, not performed by him while engaged in the performance of his duties as a policeman; that the interest of the city was directly contrary and adverse to the interest of Snell in such a proceeding; and that the primary duty of the corporation counsel is to represent the interest of the city. The city again set up its constitutional objections to the cause of action.
Snell filed a reply and a motion for summary judgment, in which he affirmatively set forth that Rule 373 of the Rules and Regulations of the Police Department of the city of Chicago provides that "a member of the department, for disciplinary purposes, shall be considered as being on duty at all times. Although certain hours are allocated to a respective member for the performance of duty on ordinary occasions, yet he is required to respond immediately day or night in any emergency, on notice that his services are needed"; that at the time Snell was performing his duty as a policeman; that Snell was charged before the Civil Service Commission for dereliction of duty in his attempt to arrest Karas and the attendant injury to him; that the ...