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Carr v. City of Des Plaines

OPINION FILED DECEMBER 8, 1978.

DANIEL CARR, PLAINTIFF-APPELLANT,

v.

THE CITY OF DES PLAINES ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR DUNNE, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from portions of an order of the circuit court affirming the City of Des Plaines Board of Police and Fire Commissioners (Board) sustaining two of the charges brought against plaintiff, one of its policemen. The issue presented is whether their affirmance is against the manifest weight of the evidence.

The relevant testimony is virtually uncontradicted. It appears that the situation giving rise to this case began on June 4, 1976, when Jerry Liggett, a Des Plaines policeman, affixed police tow stickers to four ostensibly abandoned automobiles in the parking lot of the "Deville Annex." The tow sticker notifies the owner that unless the vehicle is removed by a specified date, it will be towed and impounded or disposed of by the city.

During the week following June 4, plaintiff, then a Des Plaines police patrolman who also operated a salvage business, stopped by the Deville Annex and spoke to Richard Deithloff, a wrecking contractor, who had recently begun the demolition of one of the buildings at that site. At this time, three of the four abandoned vehicles remained on the premises — a brown 1967 Ford; a 1968 Ford station wagon; and a black and turquoise 1968 Oldsmobile. Plaintiff asked Deithloff what was going to happen to these three automobiles, and Deithloff responded that he had a contract with the owner of the premises which gave him the authority to dispose of all salvageable iron and steel. Plaintiff then asked whether he could remove the vehicles and Deithloff, aware that plaintiff was interested in the vehicles for his personal salvage business and not in connection with any police matter, consented to their removal. Later, plaintiff arrived with a flatbed truck and removed the three vehicles.

Deithloff, called as a witness by the city at the Board hearing, testified that the windshield of the brown 1967 Ford was shattered but on it he saw "an outline of where there used to be something stamped on the windshield" and "the upper left-hand corner of a red sticker." Plaintiff himself also testified on cross-examination that he noticed a police tow sticker attached to the smashed windshield of "one of the Fords."

On June 11, after plaintiff had removed the three automobiles, Officer Bastian of the Des Plaines Police Department was directed to go to the Deville Annex to determine whether the automobiles ticketed by Officer Liggett were still in the parking lot. After he found that the vehicles were missing, the police department conducted an investigation and, in the course thereof, Sergeant Sturlini found plaintiff's flatbed truck parked in another area of the city carrying the 1968 Ford station wagon.

Sturlini testified that he did not notice a tow sticker on the 1968 Ford station wagon but that "a gummed portion was visible; some type of material on the windshield, approximately by the driver's side of the vehicle." Clark testified that a portion of a tow sticker was lying on the floor of the station wagon. The remains of the sticker, which was introduced into evidence, clearly indicated that it was issued on June 4, 1976, by a policeman whose name began with the letters "Lig."

A complaint was brought against plaintiff before the Board, alleging that plaintiff improperly removed the stickered vehicles for his own use without the authority of the owners or police and that such misconduct constituted cause for discharge. After a hearing, the Board agreed and found that plaintiff was guilty of (1) unbecoming conduct, in violation Rule 310.02 of the Des Plaines Police Department, in that he acted in a manner strongly indicative of the commission of a theft; (2) unbecoming conduct, in violation of Rule 310.02, in that he acted in a manner strongly indicative of a commission of an obstruction of justice; and (3) failure to obey laws and ordinances, in violation of Rule 310.04 of the Des Plaines Police Department, in that he failed to observe sections 4-201 and 4-202 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, pars. 4-201, 4-202) as well as sections 10-14-2 and 10-14-3 of the Des Plaines City Code (Des Plaines, Ill., Ordinance M-13-70, §§ 10-14-2, 10-14-3 (July 21, 1970)). The Commission accordingly ordered plaintiff discharged.

Plaintiff then brought this action for administrative review, and the trial court after a hearing entered an order stating that the charge of conduct indicative of an obstruction of justice was not supported by the manifest weight of the evidence, but that the charge of unbecoming conduct strongly indicative of a theft and the charge of failure to obey laws and ordinances were so supported. The trial court then remanded the matter to the Board for reconsideration of the penalty and provided that, upon such decision by the Commission, the order would become final and appealable. On remand, the Board sustained plaintiff's discharge. Plaintiff subsequently filed a post-hearing motion and petition for reconsideration in the trial court, which was denied.

OPINION

I.

Plaintiff initially contends that the charge of unbecoming conduct strongly indicative of the commission of a theft, in violation of Rule 310.02 of the Des Plaines Police Department, is not supported by the manifest weight of the evidence. In particular, he argues that Deithloff's statement that he was given the salvage rights to the automobiles in his demolition contract indicated to him that Deithloff was in fact the owner of the vehicles and that since he had Deithloff's permission to remove them, he could not have committed a theft. We do not believe, however, that the evidence shows that plaintiff properly secured the permission of the owners before removing the vehicles. Section 3-112 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 3-112) provides, with certain exceptions not relevant here, that transfer of ownership is not effective except by means of a certificate of title. In addition, section 3-117(b) of the Code provides that:

"Any owner who sells or in any manner disposes of any vehicle as wreckage or salvage shall before disposing of such vehicle surrender his Certificate of Title along with proper application and fee to the Secretary of State and a Salvage Certificate shall be issued." (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 3-117(b).)

In the case at bar, there was absolutely no testimony that plaintiff or Deithloff were concerned with securing a salvage certificate. As a police officer, plaintiff should have known that under the circumstances here, Deithloff could not properly have held or transferred title to these vehicles without a certificate. We think the record clearly indicates that plaintiff removed these vehicles for his own use without determining the identity of the ...


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