Feeley v. McAuliffe

• Decision Date: 23 June 1948
• Docket Number: Gen. No. 44181.
• Citation: 80 N.E.2d 373,335 Ill.App. 99
• Parties: FEELEY v. McAULIFFE et al.
• Court: United States Appellate Court of Illinois

335 Ill.App. 99

80 N.E.2d 373

FEELEY

v.McAULIFFE et al.

Gen. No. 44181.

Appellate Court of Illinois, First District, Third Division.

June 23, 1948.

Appeal from Circuit Court, Cook County; Paul A. Jones, Judge.

Action by James H. Feeley against Frank C. McAuliffe and Frank Tinney for damages on account of maliciously causing plaintiff to lose his position as a Chicago Fire Insurance Patrolman. From judgment for the defendants, the plaintiff appeals.

Judgment affirmed.

Frederick J. Bertram, of Chicago, for appellant.

Bishop, Mitchell & Burdett, of Chicago, for appellees.

KILEY, Justice.

This is an action for damages based on the charge that defendants maliciously caused plaintiff to lose his position as a Chicago Fire Insurance Patrolman. A trial by jury resulted in separate verdicts in favor of defendants. Judgments were entered on the verdicts and plaintiff has appealed.

The Chicago Fire Insurance Patrol was organized under the Underwriters Patrol Act (Chapter 142, Ill.Rev.Stats.) to discover and prevent fires and to protect and save property against, and salvage property after a fire. Boards of Underwriters under the Act are empowered to provide, and accommodate, a fire patrol and competent superintendent. The work of a patrol is subject to the control of the city fire marshal wherever such a patrol is organized. The patrol is financed by assessments against fire insurance companies on the basis of premiums collected and the Board of Underwriters makes the patrol budget.

Plaintiff was employed as a patrolman from May 11, 1926 until his discharge June 19, 1942. He was discharged after charges were preferred against him by Defendant McAuliffe and after trial by the Trial Committee of the Fire Insurance Patrol.

The basic issue made by the pleadings was whether plaintiff's discharge and consequent financial loss was the result of the malicious conduct of the defendants. Although a conspiracy between the defendants is charged, the gist of this tort action is the wrongful conduct attributed to the defendants. Eschman v. Huebner et al., 226 Ill.App. 537. Malice means an intent to do a wrongful harm. Doremus v. Hennessy, 176 Ill. 608, 52 N.E. 924,54 N.E. 524,43 L.R.A. 797, 802,68 Am.St.Rep. 203;Eschman v. Huebner et al., 226 Ill.App. 537; and London Guarantee v. Horn, 206 Ill. 493, 69 N.E. 526,99 Am.St.Rep. 185.

In February 1942, plaintiff was injured in the performance of his duty. The patrol records show that he was thereafter assigned to the Shop, but actually he was employed in decorating McAuliffe's home. His injury caused him distress and after examination and recommendation by the Patrol physician, McAuliffe granted plaintiff a sick leave commencing April 15th. Plaintiff went to Mexico and in his absence McAuliffe suspended him by a letter which accused plaintiff of violation of section 6 of the Patrol Rules and Regulations. May 19th plaintiff met with McAuliffe in Chicago and, on the same day, was notified in writing by McAuliffe to report to the Patrol Medical Officer for examination. June 1st McAuliffe notified plaintiff of charges preferred against him for violation of section 6 of the patrol rules and regulations and for refusal to obey the order of May 19th to report to the Medical Officer.

The Underwriters Patrol Act does not provide for government of the patrols organized thereunder. The Chicago Fire Insurance Patrol adopted rules and regulations for its government. Section 6, which plaintiff was accused of violating, requires members of the patrol when on leaves of absence to make daily reports to commanding officers unless excused by the chief officer. Section 7 of the Rules governing patrolmen, requires prompt and unqualified obedience to orders and commands. The chief officer, under the rules, is given supreme command with the power to suspend any officer or patrolman charged with or deemed guilty of violating rules or regulations and is held accountable for good order and discipline of the force and for the payment of patrol funds. McAuliffe has been chief officer of the Chicago Patrol since 1924.

We infer from the verdicts that the jury believed the defense witness' testimony that on April 15, 1942, defendant McAuliffe excused plaintiff from the daily reports required under Section 6, but ordered plaintff to keep McAuliffe advised of his whereabouts while he was gone; that plaintiff was in Mexico for 21 days and did not report and was suspended; and that upon his return plaintiff refused to obey McAuliffe's order of May 19th to report to the Medical Officer. We have studied the evidence and see no merit to the contention that the verdicts on the material issues of fact are against the manifest weight of the evidence. On the question of the May 19th order, plaintiff testified that he tried unsuccessfully twice to see the Medical Officer in the several days before charges were preferred against him. The doctor testified that he was in the city for the customary daily office hours during those several days. We think this shows that the plaintiff did not seriously attempt to comply with the command of his...