APPEAL from the Circuit Court of Marion County; the Hon. E.
HAROLD WINELAND, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Defendant, the city of Salem, appeals from the judgment of the circuit court of Marion County entered upon a jury verdict awarding plaintiff, David Meador, damages in the amount of $375,000 for personal injuries suffered on December 23, 1966.
Plaintiff's cause of action is based upon section 1-4-6 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, par. 1-4-6) which in pertinent part provided:
"If any person in obeying the command of any such policeman to assist in arresting or securing an offender is killed or injured, * * * and such death, injury or damage arises out of and in the course of aiding such policeman in arresting, or endeavoring to arrest, a person * * * the person * * * so injured * * * shall have a cause of action to recover the amount of such damage or injury against the municipal corporation by which such policeman is employed at the time such command is obeyed."
In his complaint plaintiff alleged that he was riding in a police car owned by the defendant city and being driven by Robert Robertson, a police officer employed by the defendant city, who at the time was acting within the scope of his employment as a police officer; that Robertson, acting within the scope of his employment, commanded plaintiff to assist in arresting a motorist engaged in violating a traffic statute of the State of Illinois; that while Robertson drove the police automobile in pursuit of the offending motorist, plaintiff, at Robertson's command, operated the police radio in the automobile and communicated with other police officers in order to obtain assistance in apprehending the fleeing motorist; that while so engaged in pursuing the motorist the police car was driven into a ditch and plaintiff was injured, and that at all times plaintiff was in the exercise of ordinary care for his own safety.
The testimony shows that on the date of the occurrence plaintiff was employed by the Salem Police Department. His duties were varied and included the operation of the police radio in the station house. On one occasion he helped a police officer who was having difficulty with an intoxicated person and also drove the automobile in which the officer delivered the prisoner to the county jail. For several weeks before his injury he had been working a shift which commenced at 4:00 P.M. and ended at midnight. Frequently he was given a ride home in one of the police cars, and on the night in question, when his shift ended, he entered the police car being driven by Robert Robertson. As they were leaving the parking space in front of the police station they observed an automobile traveling at a high rate of speed. Robertson pursued the speeding automobile, turned on the siren and red lights, and told plaintiff to operate the car radio and contact the Salem police headquarters and other police cars, and ask them to assist in apprehending the speeding automobile. Plaintiff complied with Robertson's directions and operated the radio throughout the pursuit. He advised police cars of Salem and Centralia as to the location and direction of the pursuit. While traveling over a graveled road approximately 3 miles southwest of Salem, the police car ran off the road and plaintiff was seriously and permanently injured.
Much of defendant's brief is devoted to the contention, relevant to a number of its assertions of error, that the trial court erred in its construction of section 1-4-6 of the Illinois Municipal Code. The trial court interpreted the section to impose absolute liability for injuries suffered while obeying the command of a police officer and did not require plaintiff to prove either negligence or willful and wanton conduct. Defendant argues that by reason of section 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, par. 2-109) the defendant city cannot be held liable unless Robertson is liable, and that by reason of section 2-202 of the Act Robertson cannot be held liable unless he was guilty of willful and wanton conduct.
Plaintiff, contending that the trial court correctly construed the statute, cites section 31-8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1965, ch. 38, par. 31-8) which provides:
"Whoever upon command refuses or knowingly fails reasonably to aid a person known by him to be a peace officer in:
(a)Apprehending a person whom the officer is authorized to apprehend; or
(b) Preventing the commission by another of any offense, shall be fined not to exceed $100"
and argues that section 1-4-6 of the Illinois Municipal Code reflects the public policy that when a citizen is injured in the course of assisting a peace officer as required by section 31-8 the municipality be held absolutely liable for his injuries.
There are no opinions of this court in which the question here presented was considered. Counsel have, however, cited authorities construing a New York statute enacted in 1932 as section 1848 of the Penal Law of New York which in substance combined the provisions of section 31-8 of the Criminal Code of 1961 and the pertinent paragraph of section 1-4-6 of the Illinois Municipal Code. Section 1848 has since been repealed and section 195.10 of the Penal Law of New York, effective September 1, 1967, is substantially similar to section 31-8 of the Criminal Code of 1961 while section 71-a of the General Municipal Law of New York, also effective September 1, 1967, contains provisions substantially similar to those of the pertinent paragraph of section 1-4-6 of the Municipal Code. In Schuster v. City of New York, 5 N.Y.2d 75, 154 N.E.2d 534, the New York Court of Appeals, in dictum, stated that section 1848 created an absolute liability against municipal corporations for damages for injuries suffered while aiding a policeman, at his direction, in making an arrest. In Sawyer v. Town of Southport, 6 App. Div.2d 553, 179 N.Y.S.2d 897, the Appellate Division of the Supreme Court of New York held that section 1848 "provides for liability without fault."
In our opinion the General Assembly, in enacting section 1-4-6 of the Municipal Code, intended, if injuries are suffered under the circumstances which are described in the statute, that absolute liability be imposed. We hold that the circuit court correctly construed the statute.
Defendant contends next that section 1-4-6 of the Illinois Municipal Code is unconstitutional in that it violates section 2 of article II of the constitution of 1870 and section 1 of the fourteenth amendment to the constitution of the United States. Citing Grasse v. Dealer's Transport Co., 412 Ill. 179, and Marallis v. City of Chicago, 349 Ill. 422, defendant argues that the creation of a cause of action under the circumstances described in the statute results in an unreasonable and arbitrary classification of persons injured and of the public entities against whom a claim may be asserted. Defendant contends further that the statute is vague, uncertain, and indefinite as to its ...