Bush v. Babb

• Citation: 23 Ill.App.2d 285,162 N.E.2d 594
• Decision Date: 10 November 1959
• Docket Number: Gen. No. 47726
• Parties: Carl BUSH et al., etc., Plaintiffs-Appellants, v. John E. BABB, etc., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 594

162 N.E.2d 594

23 Ill.App.2d 285

Carl BUSH et al., etc., Plaintiffs-Appellants, v. John E. BABB, etc., et al., Defendants-Appellees.

Gen. No. 47726.

Appellate Court of Illinois, First District, Second Division.

Nov. 10, 1959.

McCoy, Ming & Leighton, Chicago, George N. Leighton, Chicago, of counsel, for appellants.

Herbert C. De Young, Dent, Hampton & Doten, Chicago, for appellees.

KILEY, Justice

This is a suit by a former inmate of the County Jail and his father, to recover damages for the alleged wrongful neglect by the Sheriff and Warden of the Cook County Jail as a result of which the inmate contracted tuberculosis and became a financial burden to his father. The trial court, on defendants' motions, dismissed the suit and plaintiffs have appealed.

The motion to dismiss admitted the well pleaded facts. Carl Bush, while an inmade of the Cook County Jail from October 1, 1951 to March 1, 1952, contracted a cold which grew steadily worse. From the beginning of the illness he kept Sheriff Babb and Warden Scanlan informed of his condition and requested medical examination, care and treatment, but was not given 'adequate' care and pulmonary tuberculosis developed. He had not suffered previously from this illness and in the jail exercised such care for his health as the rules of the jail permitted.

March 1, 1952, he was transferred for diagnosis to the Joliet Penitentiary where the pulmonary tuberculosis condition was confirmed, and it was found that he had 'for one month' before developed 'far advanced and active' tuberculosis. He was transferred to Pontiac Reformatory, for 'bed rest and supportative therapy', where he remained until April, 1953, when the Supreme Court of Illinois reversed his conviction and he was released. People v. Bush, 414 Ill. 441, 111 N.E.2d 326. Since his release he has been unable to work, and will be incapacitated the rest of his life. His father has, since April, 1953, had the burden of caring for Carl Bush and of the medical expense in treating him.

The complaint alleges that the sickness of Carl Bush, and expense of Arthur Bush, were proximately caused by the failure and neglect of Sheriff Babb and Warden Scanlan to perform their statutory duty to furnish Carl Bush 'adequate and proper medical examination and medical care and treatment'. In an amended complaint, the Fidelity & Deposit Company of Maryland, Inc., as surety on the Sheriff's $100,000 bond, was made a defendant. The amended complaint alleged that the Sheriff and Warden breached the condition of the bond by their negligent failure to treat Bush properly. The trial court, though it sustained the motions to dismiss for failure of plaintiffs to state a cause of action, overruled all the motions with respect to the statute of limitations.

A vital question before us is, therefore, whether plaintiffs' pleadings sufficiently alleged the breach of a duty of Babb and Scanlan toward Carl Bush as a proximate result of which breach Carl Bush and Arthur Bush, suffered injury for which they could be compensated. We must construe plaintiffs' pleadings most strongly against them on the question. Field v. Oberwortmann, 14 Ill.App.2d 218, 144 N.E.2d 637.

Plaintiffs do not dispute defendants' argument that the amended complaint does not charge malice on the part of defendants. It is unnecessary, therefore, to consider the cases cited by plaintiffs which involve charges of malicious injuries, such as People of Village of Moweaqua, for Use of Johnson v. Morgan, 188 Ill.App. 250. The Illinois cases cited by plaintiffs deal mainly with suits against public officers who had diverted or misappropriated funds; or affecting liability of a sheriff for damages to property, escape of prisoners, and neglect or other conduct in serving writs or seizing property. They concede that there is no Illinois case deciding whether a jailer can be held liable to an inmate suffering illness as a result of the negligence of the jailer.

We think several cases which appear to support their position are not persuasive. In State ex rel. Hayes v. Billings, 1954, 240 N.C. 78, 81 S.E.2d 150, a complaint for damages against a sheriff was upheld, but the complaint was 'liberally construed in favor of plaintiff', and under a liberal construction could be held to allege more than mere negligence. In Farmer v. State for Use of Russell, 1955, 224 Miss. 96, 79 So.2d 528, 529, the pleading and proof could support a theory of wilful failure to provide any 'medical and surgical aid'. In Smith v. Slack, 1943, 125 W.Va. 812, 26 S.E.2d 387, the Supreme Court of Appeals of West Virginia held that the sheriff's statutory duties were ministerial. In Gage v. Springer, 211 Ill. 200, 71 N.E. 860, the court decided that the duties of a Board of Local Improvements were ministerial.

Though there is no case directly in point, we think that the Illinois cases point the way to our decision. The Supreme Court in In re McGarry, 380 Ill. 359, 365, 44 N.E.2d 7, 10, stated that official action is judicial when it is the result of judgment or discretion and that when an officer can exercise his power according to his own judgment as to what is 'necessary and proper', that officer's functions are 'judicial or quasi-judicial'. The McGarry case involved the conduct of a judge, but the Supreme Court in People ex rel. Schreiner v. Courtney, 380 Ill. 171, 179, 43 N.E.2d 982, 986, said that the rule applying to judges applied alike to all officers exercising quasi-judicial powers 'and they are exempt from liability for error or mistake of judgment in the exercise of their duty in the absence of corrupt or malicious motives.' This statement is supported in 67 C.J.S. Officers § 127, P. 420 which states further '* * * exempting [officers], when acting within the scope of their authority * * * from liability for * * * negligence in [the] exercise' of quasi-judicial powers.

This immunity to officers of the state has been extended in this state to a highway maintenance man, Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435. And, to take a sample of many decisions in other states, in the absence of malicious intent, immunity was given to a sheriff who stood by at the lynching of a prisoner in Maryland, State, Use of Cocking v. Wade, 1898, 87 Md. 529, 40 A. 104, 40 L.R.A. 628; to keepers of prisons in Massachusetts, O'Hare v. Jones, 1894, 161 Mass. 391, 37 N.E. 371, and Williams v. Adams, 1861, 3 Allen, 171, 85 Mass. 171; to military officers in Oregon, Wright v. White, 1941, 166 Or. 136, 110 P.2d 948, 949, 135 A.L.R. 1; in Iowa to a mayor and city council Rehmann v. City of Des Moines, 1927, 204 Iowa 798, 215 N.W. 957, 55 A.L.R. 430; in Nebraska to members of a Depositary Guaranty Fund Commission, Morrill County v. Bliss, 1933, 125 Neb. 97, 249 N.W. 98, 89 A.L.R. 932; in New Hampshire to members of a school board, Sweeney v. Young, 1925, 82 N.H. 159, 131 A. 155, 42 A.L.R. 757; and in South Carolina to a bank examiner, Dunbar v. Fant, 1933, 170 S.C. 414, 170 S.E. 460, 90 A.L.R. 1412.

Immunity has been given by federal courts to members of a parole board, Lang v. Wood, 67 App.D.C. 287, 92 F.2d 211, certiorari denied 1937, 302 U.S. 686, 58 S.Ct. 48, 82 L.Ed. 530, and to immigration officers, Papagianakis v. The Samos, 4 Cir., 1950, 186 F.2d...