dissenting:
I respectfully note my dissent in this case.
The plaintiff filed a complaint against the County charging that the County, through its agent and employee Williams, was guilty of wilful and wanton negligence in the performance of certain of his duties as deputy sheriff. Williams was not made a party defendant.
The County filed a motion to strike the complaint based upon various grounds, including section 22.1 of the Corporate Name and Powers General Act (herein called the Indemnification Statute), (Ill Rev Stats 1965, c 34, par 301.1); and section 2-109 of the Tort Immunity Act (Ill Rev Stats 1965, c 85, par 2-109).
The motion alleged that under the terms of the Indemnification Statute, in case of injury caused to the person by a deputy sheriff while engaged in the performance of his duties, and without contributory negligence of the injured person, the county shall indemnify the deputy for any judgment recovered against him as a result of such injury, except where the injury results from the wilful misconduct of the deputy; that the plaintiff was injured by virtue of the wilful misconduct of Williams; and that under the terms of section 2-109 of the Tort Immunity Act, 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. The trial court dismissed the complaint and entered judgment for the County. This appeal followed.
I concur with the majority opinion with reference to its interpretation of the effect of the decision of Hutchings v. Kraject, 34 Ill2d 379, 215 NE2d 274 (1966) upon the Indemnification Statute, and agree generally that the Tort Immunity Act and the Indemnification Statute are in pari materia to the extent that they deal with the subject matter of the ultimate responsibility of a governmental entity or its employees, in certain instances, in their relation to third parties. To this extent the enactments should be construed together. However, I dissent from the construction of the majority of the court with reference to the two enactments.
Generally, a governmental entity acts, or fails to act, through its employees. Therefore, most governmental liability depends on the doctrine of respondeat superior. Under the liberal provisions of the Civil Practice Act, I can see no reason for concluding that the plaintiff cannot sue the County directly, without joining Williams as a party defendant, for the wilful and wanton conduct of the deputy which occurred in the performance of his duties.
If an action is brought against a governmental employee, individually, arising out of an act or omission within the scope of his employment, the Tort Immunity Act provides that the governmental entity may elect to either appear and defend the claim or completely indemnify the employee for all costs and judgments or settlements. (Tort Immunity Act, section 2-302.)
And, when a governmental entity is sued directly for an act or omission of an employee, it may assert any defense that would be available to a private person (Tort Immunity Act, section 2-110), and it may assert non-liability of the employee as an absolute defense. (Tort Immunity Act, section 2-109.) Thus, the Act contemplates that either the governmental entity or the employee, or both, may be sued pursuant to its provisions, for the act or omission of an employee.
The majority opinion construction of sections 2-109 and 2-202 of the Tort Immunity Act is unwarranted. These sections should be interpreted in a manner consistent with the procedure normally followed in suits against principals for the wrongful acts of their agents. It should be sufficient for recovery against a public entity to prove that an employee would be liable even though no employee is defendant in the action.
The Tort Immunity Act is predicated upon the Molitor rule of liability. The purpose of the Act seems to be to specify exemptions to the general principle of governmental liability.
Section 2-202 of the Tort Immunity Act provides that:
“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.”
Under this section, the legislature granted immunity to local public employees for an act or omission in the execution or enforcement of any law, if the act or omission constituted simple negligence. It followed the Molitor rule of liability for an act or omission which constituted wilful and wanton negligence. It would, thus, appear that the complaint asserted a cause of action in which Williams would be liable under section 2-202, which deals with immunity of public employees.
Under section 2-109 of the Act, which deals with immunity of local public entities, “a local public entity is not liable for an injury resulting from an act or omission of its employees where the employee is not liable.” Thus, an employee, such as Williams, would appear to be liable only for an act or omission which constituted wilful and wanton negligence; and, consequently, the County would be liable only in event the act or omission constituted wilful and wanton negligence. Under section 2-109, there could be no liability on the part of the County if Williams were guilty of simple negligence only.
In the light of these provisions, it seems that the legislature intended that the County could be sued directly in the case at bar, without joining Williams as a party defendant. The question which arises is whether the provisions of the Indemnification Statute, when considered in pari materia with the provisions of the Tort Immunity Act to the extent heretofore indicated, require a different construction. I think not!
It appears unreasonable to permit the provisions of the Indemnification Statute — a single paragraph in the Corporate Name and Powers General Act, which deals with the subject of indemnity by a single governmental entity (the County) — to override the provisions of the Tort Immunity Act, which covers the spectrum of the immunity of all local governmental entities and governmental employees.
The Indemnification Statute, as originally amended in 1959, purported to deal only with the question of immunity. It provided for nonliability of the county. Subsequently, it was again amended in 1966 to provide both for the immunity of the county and the indemnity of a sheriff or deputy sheriff in certain cases. As the majority opinion points out, that portion of the statute which purported to deal with immunity was held to be unconstitutional by the Supreme Court in Hutchings v. Kraject, supra. There remained, as the only valid portion, that part' of the statute dealing with indemnification. Subsequently, the legislature, in 1967, again amended the statute, removing all reference to immunity, and addressed itself solely to the problem of indemnification. This history, including the subsequent legislation (Lubezny v. Ball, 389 Ill 263, 266, 59 NE2d 645 (1945); Radford v. Cosmopolitan Nat. Bank of Chicago, 52 Ill App2d 240, 247, 201 NE2d 622 (1964)) vividly illustrates that the Indemnification Statute is just that — it deals with the question of indemnity of a sheriff or deputy by a county, a question we are not concerned with here. It does not grant, and should not be a basis for granting immunity.
It would seem more appropriate to subordinate the provisions of the Indemnification Statute, and to construe the two enactments to provide that the plaintiff may have a cause of action in the case at bar directly against the County for the wilful and wanton conduct of Williams in the performance of his duties as deputy sheriff, without the necessity of joining Williams as a party; and that indemnification is precluded under the provisions of the Indemnification Statute in event the injury resulted from the wilful and wanton misconduct of the sheriff or his deputy. Under this construction, the County could be held liable for the wilful misconduct of its sheriff or deputies and could be compelled to pay the judgment against it in such case; also, it would be compelled to indemnify such officer for any judgment recovered against him for an injury caused by his act or omission, which constituted simple negligence. Consequently, I would reverse and remand the cause for further pleadings and trial, all consistent with the views expressed herein.
Under the statutory construction — either of the majority opinion or as I have suggested — the Indemnification Statute requires indemnity for all law enforcement activities of sheriffs and deputies which are immune from liability under section 2-202 of the Tort Immunity Act; namely, acts or omissions based on simple negligence, but forbids indemnity in those cases in which such officers are liable under that section; namely, acts or omissions which constitute wilful and wanton negligence. This, in my opinion, permits sections 2-202, 2-109 and 2-302 of the Tort Immunity Act and the Indemnification Statute to remain as an undigested and indigestible lump in the middle of our law — a circumstance which should not exist and which should receive legislative attention.
This litigation, and that reflected in Hutchings v. Kraject, supra; Harvey v. Clyde Park Dist., 32 Ill2d 60, 203 NE2d 573 (1965), and similar cases, lies in the wake of the Molitor decision. The law in the area of governmental immunity and liability, is in dire need of further clarification with reference to the problem involved in this litigation. The clarification needed requires more than interstitial overhauling through judicial construction : it demands legislative modification!