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Downs v. Camp

JULY 23, 1969.

THOMAS J. DOWNS, ADMINISTRATOR OF THE ESTATE OF JOHN F. SENGELAUB, AND THOMAS J. DOWNS, ADMINISTRATOR OF THE ESTATE OF DOROTHY SENGELAUB, PLAINTIFF-APPELLANT,

v.

SAMUEL J. CAMP AND JOHN DILLARD, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. IRVING GOLDSTEIN, Judge, presiding. Judgment affirmed.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.

Plaintiff public administrator of the Estates of John and Dorothy Sengelaub brought two separate actions for the wrongful deaths of the Sengelaubs for the benefit of their two minor children, John and Dale Sengelaub. Defendants, Samuel J. Camp and John Dillard, were both police officers of the Village of East Chicago Heights. The causes were consolidated for trial. The jury returned a verdict for the two defendants, and judgment was entered thereon. The trial court denied plaintiff's post-trial motions. Plaintiff appeals, contending that the trial court erred in instructing the jury; that the opening statement and closing argument of counsel for defense contained prejudicial remarks; that the trial court erred in restricting the attendance at trial of the two minor children, the real parties in interest; and that the verdict was against the manifest weight of the evidence.

John and Dorothy Sengelaub were killed on August 30, 1959, at about 1:30 a.m., when an automobile operated by James Plair ran a stop sign at the intersection of Sauk Trail and Cottage Grove, located in an unincorporated area of Cook County, and struck a vehicle operated by John Sengelaub. A woman passenger in Plair's vehicle was also killed in the accident. Plair survived, but could not be located at the time of trial. Without a lawsuit, Plair's insurance carrier had paid $18,000 to plaintiff in exchange for a covenant not to sue.

At the time of the accident, Plair was being pursued by defendants in their squad car. Shortly before, at Route 30 and State Street, defendants had stopped Plair for speeding. Both officers got out of the police car; Camp informed Plair that he was speeding, and that he wished to see his driver's license. Plair stated that he had a license but did not find it in his first wallet, and started to look in another wallet. Camp told him that in order to save time he should stop looking, consider himself under arrest, and follow the police car to the station. Defendants found Plair to be courteous, and did not believe that he was under the influence of alcohol. While they conducted no tests at the scene of the arrest, they did not detect any odor of alcohol, and did not notice anything about his speech or manner to indicate that he had been drinking. The police took down Plair's license number as a matter of regular procedure. Both vehicles proceeded east on Route 30, with Plair following the police. As the police car went past Cottage Grove, Plair made a sharp right-hand turn and went south on Cottage Grove. After letting westbound traffic pass, the police made a U-turn and gave chase. Camp fired 5 warning shots into the air because the siren was inoperative. The dome light of the police car was on during the chase. The Plair vehicle was about two or three blocks ahead, and driving at an unusually high rate of speed, perhaps 100 miles per hour. Cottage Grove was a winding and hilly road, and the police lost sight of Plair. The last time they saw his vehicle during the chase, his headlights were on. However, a passenger in an automobile travelling on Cottage Grove testified that when Plair passed him, the headlights were off. When the police came to the Sauk Trail intersection, they discovered the Plair car had collided with the Sengelaub car. Sauk Trail on which the Sengelaubs were travelling was a through street, while Cottage Grove had a stop sign.

Defendants learned on the following day that Plair had no driver's license. Dillard denied the testimony of a court reporter that he had given a statement some time after the occurrence that Plair may have been drinking.

A deputy Cook County Sheriff was called to the scene of the accident, and assisted in placing Plair in the ambulance. While doing so, he detected a moderate odor of alcohol on Plair's breath, but was unable to say whether Plair was under the influence of alcohol. He made no further investigation or tests as to Plair's drinking, since the latter was removed to a hospital. The sheriff and his partner found a shotgun in the trunk of Plair's car.

Both sides presented testimony as to proper police procedure in making an arrest. Sergeant Michael Invergo of the Chicago Police Department, an instructor at the police training academy, testified for plaintiff as to the usual and proper manner in arresting a driver who was speeding and whom the officer suspected of being under the influence of alcohol. The proper procedure would be to place the person under arrest, secure his vehicle, and transport him to the nearest police station. If the violator is unable to produce a driver's license he should not be allowed to drive. A reasonable police officer would not fire shots in the air or at a traffic violator.

Terrance Dougherty, Chief of the Traffic Division of the Chicago Police Department, testified as an expert witness for defendants that an ordinary traffic violator should be allowed to drive his own car to the police station to post bond. If the violator did not have a license, good police procedure would require that the officer obtain some other identification and determine the ownership of the vehicle.

Plaintiff first contends that the trial court committed prejudicial error in giving defendants' instruction No. 7. The instruction, IPI Instruction 12.04, is as follows:

"More than one person may be to blame for causing an injury. If you decide that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiff's decedents, it is not a defense that some third person who is not a party to the suit, may also have been to blame.

"However, if you decide that the sole proximate cause of injury to the plaintiff's decedents was the conduct of some person other than the defendants, then your verdict should be for the defendants."

Plaintiff properly argues that the second paragraph of the instruction should be given only when there is evidence that a third person was the sole proximate cause of the occurrence. However he argues further that in the instant case Plair's conduct could not be considered the sole proximate cause of the accident, and that the court should have given the jury only the first paragraph of the instruction. With this latter contention we disagree.

We recognize that an intervening criminal act does not necessarily break the causal connection between the original negligent act and the injury if the intervening act is probable and foreseeable. Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74 (1954). And in the Ney case, the court held that whether an intervening criminal act was foreseeable depends upon the circumstances of the case, and therefore whether the injury was a proximate cause of the original negligence is ordinarily a question of fact.

However in Anderson v. Jones, 66 Ill. App.2d 407, 213 N.E.2d 627 (1966), this court at page 412 set forth the following salient factors to be considered in determining whether an ...


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