Appeal from the Circuit Court of Cook County; the Hon. JOSEPH
B. HERMES, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
This was an action brought by the plaintiff, an employee of the Board of Education of the City of Chicago, against the Board and its Director of Civil Service Personnel, Joseph Murphy, to recover damages alleged to have been sustained by a slanderous statement made by Mr. Murphy. The complaint alleged that on March 14, 1968, at 10:00 a.m. at the offices of the Board of Education in the presence of other persons Mr. Murphy committed the following slander against the plaintiff: "You are a con man, Oh, yes, you are, you are a con man and a professional con man."
Defendants filed a motion to strike the complaint and dismiss the action pointing out that the action was expressly barred by Ill Rev Stats 1967, c 85, § 2-107, which provided:
A local public entity is not liable for injury caused by any action of its employees that is libelous or slanderous.
The motion further stated:
3. The complaint alleges in paragraphs 2 and 5:
"2. That the defendant, JOSEPH C. MURPHY, at all times mentioned herein was the agent and employee of the defendant, BOARD OF EDUCATION, CITY OF CHICAGO, and held the title of Director of Civil Service Personnel."
"5. That at the time said JOSEPH C. MURPHY made the aforementioned statements, he was acting as the duly authorized agent and employee and within the scope of his employment of the Board of Education, City of Chicago."
The complaint therefore shows on its face that the action is expressly barred as to the defendant Murphy by c 85, § 2-201, Ill Rev Stats 1967, which provides as follows:
"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused."
4. The complaint shows on its face that the alleged statement, if made, was spoken while said defendant Murphy "was acting as the duly authorized agent and employee and within the scope of his employment of the Board of Education, City of Chicago" and said statement was therefore absolutely privileged for which reason plaintiff's complaint fails to state a cause of action.
After hearing arguments on the motion the court granted defendants' motion to strike the complaint and dismiss the action. It is from this order that plaintiff appeals.
On appeal plaintiff contends that (1) sections 2-107 and 2-201 of chapter 85 of the Ill Rev Stats are unconstitutional and (2) the words spoken by Mr. Murphy were slanderous per se. Defendants argue that plaintiff's contention alleging that sections 2-107 and 2-201 are unconstitutional should be stricken from his brief since the Appellate Court is without jurisdiction to determine the matter and that a transfer to the Supreme Court would be futile because the constitutionality of these sections was not raised in the trial court and the argument is made for the first time on appeal. Defendants also argue that the words spoken by defendant Murphy were not slanderous per se.
Plaintiff contends for the first time on appeal that sections 2-107 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act are unconstitutional. ...