Hansen v. Raleigh

• Decision Date: 21 November 1945
• Docket Number: No. 28326.,28326.
• Citation: 391 Ill. 536,63 N.E.2d 851
• Parties: HANSEN et al. v. RALEIGH.
• Court: Illinois Supreme Court

391 Ill. 536

63 N.E.2d 851

HANSEN et al.

v.RALEIGH.

No. 28326.

Supreme Court of Illinois.

Nov. 21, 1945.

Appeal from Superior Court, Cook County; M. L. McKinley, judge.

Action by Katherine Hansen and husband against John Raleigh and the Town of Cicero to recover damages for personal injuries sustained by plaintiff and for damages to her husband's automobile subsequently dismissed as to the town of Cicero. Judgment of dismissal, and plaintiffs appeal.

Reversed and remanded with directions.

Lloyd C. Moody, of Chicago (Herbert Bebb, of Chicago, of counsel) for appellants.

Charles W. Lamborn, of Chicago, for appellee.

WILSON, Justice.

The plaintiffs, Katherine Hansen and Archer Hansen, her husband, brought an action in the superior court of Cook county against the defendants, the town of Cicero, a municipal corporation, and John Raleigh, to recover damages for personal injuries sustained by plaintiff Katherine Hansen and for damages to her husband's automobile occasioned by a collision on October 17, 1940, between automobiles driven by Katherine Hansen and defendant Raleigh, respectively, at the intersection of Central and Grand avenues in the city of Chicago. The complaint consisted of ten counts, all charging Raleigh with negligence or wilful misconduct in the operation of the car he was eriving. By counts 1 to 8, inclusive, Katherine Hansen claimed damage, and in the last two counts her husband sought damages. The first count charged negligence in general terms; the second, negligence in operating an automobile at unreasonable speed, contrary to section 49, article VI, of the Motor Vehicle Law, Ill.Rev.Stat.1945, chap. 95 1/2, par. 146; the third, wilful, wanton and malicious operation of the automobile; the fourth and fifth, wilfully operating an automobile through a red stop light, contrary to section 32, article III, of the Motor Vehicle Law, IllRev.Stat.1945, chap. 95 1/2, par. 129, and an ordinance of the city of Chicago, namely, section 14 of chapter 27 of the Municipal Code, and the sixth, wilful use of a siren, contrary to section 74 of chapter 27 of the Municipal Code. The seventh count alleged the negligent operation of the automobile by Raleigh; that the town of Cicero was operating the car by him as its duly authorized agent and officer, and that he was acting, employed and engaged as agent, officer and fire commissioner of the town at the time. The eighth count repeated the allegations of counts 1 to 5, and alleged, further, that Raleigh was at the time employed, engaged and acting for the town of Cicero as its agent and officer. Upon motion, the complaint was dismised as to the town of Cicero because no notice had been given, as required by statute.

Raleigh, hereafter referred to as defendant, filed an answer denying the allegations of negligent and wilful misconduct and averring the negligent operation of plaintiffs' car by Katherine Hansen. Answering the second count, defendant averred that, in the pursuit of his duties as fire commissioner of Cicero, he was operating an automobile supplied and owned by the town, painted red and equipped with siren and lights to indicate the nature of the vehicle, conformably to section 2, subsection (d), article I, of the Motor Vehicle Law, Ill.Rev.Stat.1945, chap. 95 1/2, par. 99; that, having heard the Chicago fire alarm, and as agreed upon between the town of Cicero and the city of Chicago, and acting upon orders given him by the former, he drove toward the location of the fire. He denied that section 32, article III, of the Motor Vehicle Law refers to a fire vehicle responding to an alarm. In answer to count 6, charging the wilful use of a siren contrary to the Municipal Code, defendant averred that he was a fire department official and, at the request of the city of Chicago, made and agreed to by the town of Cicero, he was assisting, or attempting to assist, in controlling and extinguishing a fire in Chicago, and properly used the siren, at the same time denying that the ordinance prohibited its use, as he was one of those in excepted classes. By way of an affirmative defense not limited to any one count, defendant stated that the town ordered him, pursuant to agreement between the town of Cicero and the city of Chicago, to respond to fire alarms on the west side of Chicago, nearest to Cicero, the same as in Cicero, and use fire apparatus, equipment and firemen, if needed to aid in controlling and extinguishing fires; that he had done so for a long time past; that he was so acting in response to a fire alarm at the direction of the town of Cicero when the collision occurred and that, under the statute, he was not liable, as he was carrying out orders of the town of Cicero.

Plaintiffs' motion to strike certain portions of the answer was allowed in part, and defendant was ordered to file an amended answer. Defendant subsequently interposed a pleading captioned ‘Additional Answer,’ setting up that he had verbal orders from the president and board of trustees of the town of Cicero, given him as fire commissioner, to respondent to alarms in Chicago, either personally or with firemen and equipment, to aid in extinguishing fire for the protection of property and life, if and in case the fires were in close proximity to the town of Cicero; that such orders had been in effect for more than fifteen years; that he believed there was no ordinance of the town to this effect; that the same orders and practice are in effect in Chicago, and that the object of this practice, so far as the town of Cicero is concerned, is that its fire department may obtain training and experience in control of fires in the manner used in metropolitan cities. Plaintiffs' motion to strike the additional answer was allowed, and the answer stricken, the order of the court describing it as an ‘amended answer.’

Thereafter, a third answer, styled by defendant a second amended additional answer, was filed. In this answer, defendant alleged that he was a duly authorized agent of the town of Cicero, acting as fire commissioner, responding to a fire alarm in the usual manner, by and with the consent of the board of trustees of the town of Cicero; that there was no written agreement or ordinance between Chicago and Cicero relating to mutual assistance in combatting fires, but that the town of Cicero and the city of Chicago, in reciprocity and comity, had mutually employed fire equipment for years.

Defendant filed a motion to dismiss, and plaintiffs an answer thereto. Before disposition was made of the motion, defendant, by leave of court, filed a second motion to dismiss, which was substantially the same as the first. The principal grounds for dismissal relied upon were the allegations and admission appearing in the pleadings upon the face of the record that defendant was the fire commissioner of the town of Cicero and acting in the discharge of his duties of such fire commissioner at the time of the accident and that the Firemen's Immunity Act, Laws of 1931, p. 618, Smith-Hurd Stats. c. 70, s 9, grants immunity to a member of a municipal fire department while operating a motor vehicle engaged in the performance of his duties as fireman. The second motion also set up the failure of plaintiffs to answer ‘special defenses.’ This motion was later supported by a brief, three affidavits and two letters. The affidavits were to the effect that, in October, 1932, the board of trustees of Cicero adopted a resolution authorizing the use of Cicero fire equipment to aid the Chicago department, and giving the commissioner leave to attend all fires in Chicago and Berwyn for the purpose of offering aid necessary for extinguishing fires in those municipalities and to use the fire department automobile. Two letters, both from the fire marshall of Cicero to defendant, dated May 11, 1944, list five fires to which the Chicago fire department responded in Cicero from December 31, 1935, to and including March 8, 1943, and Cicero responses to Chicago fires on nine different dates from May 19, 1934, to and including April 15, 1944. Plaintiffs' answer to the motion to dismiss, supported by a brief in opposition, denied that defendant was operating a vehicle owned and used as a part of Cicero's fire department. Replying further, plaintiffs denied that defendant was engaged in the performance of duties as an employee of the Cicero fire department, within the contemplation of the Firemen's Immunity Act but, instead, was going to a fire in Chicago as an observer. Plaintiffs added that defendant was not responding to an emergency call and, hence, was required to stop in obedience to the stop sign, which he failed to do, thereby causing the accident. The motion to dismiss was sustained and judgment of dismissal entered. At the same time, plaintiffs, by leave of court, filed a reply. Plaintiffs also made a motion submitting propositions of law, among others, that the Firemen's Immunity Law contravenes sections 22 and 23 of article IV of our constitution, Smith-Hurd Stats., and that the immunity purportedly granted is limited to duties ‘as fireman’ and that defendant, at the time of the collision, was a mere observer not engaged in duties ‘as fireman.’

From the foregoing confused aggregate of allegations, denial, admission, and motions to dismiss and strike, finally emerge the issues between the parties in the trial court and upon this appeal, namely: (1) Is a member of a municipal fire department exempt, under the laws of Illinois, from liability for negligence in operating a vehicle of the department in the line of his duty as fireman, even though he may be negligent; (2) if the act is valid, does its grant of immunity extend to negligence in operating a vehicle of the fire department not in the line of his duty as a fireman, and (3) do the pleadings present an issue of fact as to whether defendant was operating the automobile of the fire department of the town of Cicero at the time of the collision in or...