Jackson v. Ferolo

• Decision Date: 11 April 1972
• Docket Number: No. 55003,55003
• Citation: 283 N.E.2d 247,4 Ill.App.3d 1011
• Parties: Sylvester JACKSON, Plaintiff-Appellant, v. George FEROLO et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 247

283 N.E.2d 247

4 Ill.App.3d 1011

Sylvester JACKSON, Plaintiff-Appellant, v. George FEROLO et al., Defendants-Appellees.

No. 55003.

Appellate Court of Illinois, First District, Second Division.

April 11, 1972.

Alan E. Morrill, Robert A. Sprecher, Chicago, for plaintiff-appellant; Morrill, Koutsky, Klomann & Chuhak, Crowley, Sprecher, Barrett & karaba, Chicago, of counsel.

Edward V. Hanrahan, State's Atty., Cook County, for defendants-appellees; Vincent Bentivenga, Chief of the Civil Div., James A. Rooney, Fredric B. Weinstein, Asst. State's Attys., of counsel.

SCHWARTZ, Justice.

Plaintiff brought suit to recover for injuris sustained as the result of the alleged negligent discharge of a revolver on May 5, 1964, by the defendant, George Ferolo. Plaintiff amended his complaint and joined the City of Chicago and the County of Cook as defendants. Plaintiff apparently had difficulty in determining whether he should sue the City or the County, since Ferolo was either a deputy-bailiff, employed by the City, or a deputy-sheriff, employed by the County. The basis for this confusion was the Judicial Article to the Illinois Constitution S.H.A. (Sched. Par. 7, Art. 6, Illinois Constitution) which went into effect on January 1, 1964, abolishing the Municipal Court of Chicago and providing that bailiffs of that court would be subject to rule of the Circuit Court of Cook County.

On July 25, 1965, judgment on the pleadings was granted to the defendant, County of Cook, by agreement of the parties. On January 27, 1970--more than four years later--plaintiff filed a motion to vacate the order of July 25, 1965. The motion was denied. Plaintiff then voluntarily non-suited the City of Chicago and dismissed defendant Ferolo. Plaintiff appeals from the denial of his motion to vacate the order of July 25, 1965, contending that it was erroneous as a matter of law for the trial court to enter judgment on the pleadings for the County of Cook. It should be noted that this appeal is taken only against the County of Cook; defendants City of Chicago and George Ferolo are not parties to the appeal. The facts follow.

The Judicial Article, previously referred to, went into effect January 1, 1964, and provided that the bailiff of the Municipal Court and his deputies should 'perform such services as may be prescribed by rule of the Circuit Court.' On January 2, 1964, the judges of the Circuit Court adopted Rule 0.5, which provided in part that the bailiff and his deputies 'shall perform . . . the duties . . . usually performed by sheriffs. . . .' The rule further provided, under conditions of service, that '. . . the powers, duties and liabilities, oath of office, . . . of such bailiff shall be the same as near as may be . . . as those prescribed by law for sheriffs. . . .' It was May 5, 1964, about five months after the Sheriff had been given control of bailiffs, that plaintiff was shot. It was October 1, 1964, that plaintiff filed his complaint alleging that Ferolo negligently shot him. On April 19, 1965, plaintiff filed an amended complaint in three counts. Count I charged negligence against Ferolo and sought damages from him. Count II was directed against the City of Chicago and alleged that at the time of the shooting, Ferolo was employed by the City as a deputy-bailiff and was acting in the scope of his employment, notwithstanding the fact that, pursuant to the Judicial Article, the bailiffs of the Municipal Court were subject to the supervision and control of the Circuit Court of Cook County. Count III was directed against the County of Cook and alleged that at the time of the shooting, Ferolo was employed by the County as a deputy-sheriff.

On May 11, 1965, the County moved for judgment on the pleadings on the ground that Ferolo was not employed as a deputy-sheriff at the time of the shooting. The motion was supported by the affidavit of the Chief Personnel Supervisor of the Sheriff's office of Cook County, which stated that Ferolo was not employed by the Sheriff in 1964. Nothing in this affidavit reveals knowledge of the change in the Constitution placing deputy-bailiffs under the control of the Sheriff.

On May 12, 1965, the City of Chicago moved to dismiss the action against it on the ground that, as of January 1, 1964, the effective date of the new Judicial Article, deputy-bailiffs of the Municipal Court became employees of the Circuit Court of Cook County, and were no longer employed by the City.

On July 25, 1965, the Circuit Court (Judge Hugo M. Friend presiding, and all parties being represented and Agreeing thereto) entered an order disposing of the motions of both the City and the County. The City, apparently unaware of the applicable provisions of the new Judicial Article, withdrew its motion to strike the complaint...