Appeal from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
This appeal involves interpretation of the Local Governmental and Governmental Employees Tort Immunity Act, (Ill Rev Stats 1965, c 85, § 1-101 et seq.) passed into law August 13, 1965, and referred to herein as the Tort Immunity Act.
The plaintiff, Alvernest Mills, on September 5, 1965, shortly after the adoption of this Act, while entering her automobile which was parked on one of the streets of the City of Rockford, County of Winnebago, State of Illinois, sustained an injury as a result of a bullet passing through the thighs of both of her legs.
It seems that one John Williams, Deputy Sheriff of the County of Winnebago, defendant, while in the performance of his duties, was in pursuit of a youth suspected of having committed a misdemeanor. Williams fired his revolver at the fleeing youth and one of the bullets struck the plaintiff as stated. On March 4, 1966, the plaintiff filed a notice with the County Clerk of the defendant which notice informed the defendant (along with other information not necessary to be considered in this appeal) that she was about to commence an action because of the injuries sustained. Thereafter, on August 30, 1966, plaintiff filed her complaint solely against the defendant setting forth, in addition to the above matters, that she was in the exercise of due care of herself at the time and place in question; that it was the duty of Williams not to cause her harm but that, despite this duty, Williams did so in a "wilful and wanton" manner which caused the claimed injury.
The defendant filed a motion to strike the complaint. One of the grounds was based upon section 22.1 of the Corporate Name and Powers in General Act (Ill Rev Stats 1965, c 34, § 301.1) and referred to herein as the Indemnification Act. The motion was allowed with leave to amend; however, the plaintiff elected to stand on her complaint and this appeal followed.
The sections of statutes in force at the time of this occurrence are as follows:
"A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable."
"A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence."
"No county shall be liable for any injuries to the person or to the property or for the death of any person heretofore or hereafter caused by or resulting from the negligence of its agents, servants, officers or employees in the operation or maintenance of any property, equipment or facility under the jurisdiction, control or custody of the county or otherwise occasioned by the acts or conduct of such agents, servants, officers or employees; however, in case any injury to the person or property of another is caused by a sheriff or any deputy sheriff, while the sheriff or deputy is engaged in the performance of his duties as such, 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 county shall indemnify the sheriff or deputy, as the case may (be) for any judgment recovered against him as the result of such injury, except where the injury results from the wilful misconduct of the sheriff or deputy, as the case may be, to the extent of not to exceed $50,000, including costs of suit. . . ." (Emphasis added.)
It is plaintiff's theory that section 2-202, which concerns itself with immunity of public employees as opposed to public entities, allows her to recover against Williams if he has been guilty of wilful and wanton negligence. Then, after first establishing her right under section 2-202, in the manner related above, the plaintiff urges that, even though Williams has not been found liable in another action or joined in this suit, he may, nevertheless, be found guilty in the present case. She then concludes that if he is found guilty of wilful and wanton negligence, then it would naturally follow that the defendant would be liable under section 2-109.
A brief history reveals that in 1959, there was passed into law that portion of the statute which immunized all counties and its agents, servants, officers or employees from liabilities caused by their negligent acts in the operation or maintenance of any property, equipment or facility under the county's jurisdiction, control or custody. In 1961, by amendment, there was added the present indemnification provision set forth as section 301.1 above, relating to injuries caused by the negligent acts of sheriffs or their deputies while engaged in the performance of his duties, "except where the injury results from wilful misconduct of the sheriff or deputy, . . . ." This statute remained intact until the case of Hutchings v. Kraject, 34 Ill.2d 379, 382, 215 N.E.2d 274 (1966) when the Supreme Court held void that portion of the Act adopted in 1959, which granted immunity to all counties and their agents, servants, officers or employees for injuries caused to others as a result of their negligent acts. The reason assigned in the decision was that the Legislature had attempted to classify governmental units as such, without regard to similarity of function. It is to be noted that the Supreme Court specifically referred to only the 1959 enactment and not to the added portion of 1961. It is to be further noted that while the 1961 addition refers only to sheriffs and their deputies, still the ...