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Andrews v. Porter

MAY 3, 1966.

CLEO ANDREWS, ADMINISTRATOR OF THE ESTATE OF CHARLES HERMAN ANDREWS, DECEASED, PLAINTIFF-APPELLANT,

v.

THOMAS D. PORTER, AND CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE. ELBERT FOX, PLAINTIFF-APPELLANT,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE, AND PATRICK PRICE, ET AL., DEFENDANTS.



Appeals from the Circuit Court of Cook County, Law Division; the Hon. BEN SCHWARTZ, Judge, presiding. Judgments reversed in part and affirmed in part and causes remanded with directions for further proceedings not inconsistent with this opinion.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

These cases represent consolidated appeals from two judgments on the pleadings in favor of the City of Chicago.

In No. 50328 (Andrews, Administrator v. City of Chicago), Count One of the complaint is against a policeman, Thomas Porter, and alleges, in substance, that on August 1, 1960, defendant negligently shot and killed one Charles Andrews; that decedent was in the exercise of due care and caution; that decedent left surviving him a wife and five minor children, who suffered pecuniary loss as a result of said wrongful death; and that plaintiff, the widow, is the administratrix of the estate of the deceased.

Count Two is against the City of Chicago and alleges that the defendant policeman was engaged in the business of said city and acting in the course of his employment at the time of the injury. This count incorporates the allegations of Count One and prays for a direct judgment against the city for the negligent acts of its employee.

Count Three alleges that a statute, chap 24, par 1-4-5 of the Illinois Revised Statutes (1963), provides that a city shall indemnify a policeman for any judgment recovered against him by a person injured by said policeman while he is engaged in the performance of his duties, except where the injury results from his wilful misconduct. This count incorporates the allegations of Count One and further alleges that the requisites of the Statute have been met and prays for a declaratory finding to that effect; for a further declaratory finding that defendant City is liable to plaintiff for a sum in the amount of any judgment rendered against the policeman; and for a direct declaratory judgment against the city for the amount of any such judgment.

In No. 50329 (Fox v. City of Chicago), Count One names as defendants three Chicago policemen, and alleges, in substance, that on January 24, 1963, plaintiff was arrested for a traffic violation and tendered bond for his release at the station; that his bond was refused and he was retained in custody on a purported charge of larceny, on the alleged authority of a capias previously issued against one Albert Fox; that plaintiff had never been charged with the offense of larceny and no capias or warrant for any such offense had ever been issued against him; that the capias on which plaintiff was being held was null and void, for the reason that the Albert Fox named therein, on June 19, 1962, several months prior to the arrest of plaintiff, had been sentenced to serve twenty days in the County Jail for the offense referred to in the capias and had in fact served the sentence; that plaintiff informed defendants of the above facts and requested that they verify them; that defendants arbitrarily refused to do so and kept him in custody and produced him in court the following morning; that he appeared in court and apprised the judge of the above facts, whereupon the judge directed the assistant state's attorney to attempt to verify the statements made by plaintiff and that this was done and plaintiff was released from custody. This count prays for general and punitive damages against the policemen.

Count Two, as in No. 50328, names the City as defendant, incorporates the allegations of Count One, and prays for a direct judgment against the City for the negligence of its employees.

Count Three, alleges the same statute raised in Count Three of No. 50328 and prays for the same relief.

In both cases, the City filed Motions to Dismiss, alleging that direct action against the City is barred by chapter 24, par 1-4-5 of the Illinois Revised Statutes (1963). In separate judgments dated October 19, 1964 in No. 50329 (Fox v. City, et al.) and November 18, 1964 in 50348 (Andrews v. City, et al.), the trial court sustained the City's motion and dismissed the actions, as to the City only, on the ground that a municipal corporation cannot be sued directly for the alleged tortious actions of its police officers. The court found no just reason for delaying an appeal. From these judgments plaintiffs appeal.

Plaintiffs' theory of the case is (1) that under the decision of the Illinois Supreme Court in Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89 (1959), and subsequent decisions, the City of Chicago is liable for the tortious actions of its police officers and may be sued directly for damages resulting therefrom and (2) that the indemnity provision found in Illinois Revised Statute (1963), chapter 24, par 1-4-5, is for the benefit of policemen against whom judgments may be rendered and does not bar a direct action against the City.

It is the theory of defendant, City of Chicago, (1) that the City's liability for the tortious acts of its policemen is limited by statute to that of indemnitor, (2) that this is the exclusive remedy of the injured person and (3) that no direct action may be initiated against the City without first securing judgment against the policemen.

The indemnity provisions found in par 1-4-5 read in substance as follows:

1-4-5. Indemnification for injuries caused by policemen — Liability for injuries caused while assisting policeman.

In case any injury to the person or property of another is caused by a member of the police department of a municipality having a population of 500,000 or over, while the member is engaged in the performance of his duties as a policeman, and without the contributory negligence of the injured person or the owner of the injured property, or the agent or servant of the injured person or owner, the municipality in whose behalf the member of the municipal police department is performing his duties as policeman shall indemnify the policeman for any ...


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