Kelly v. Ogilvie

• Decision Date: 07 October 1965
• Docket Number: Gen. No. 49772
• Citation: 212 N.E.2d 279,64 Ill.App.2d 144
• Parties: Robert KELLY, Plaintiff-Appellant, v. Richard OGILVIE, Jack Johnson, H. W. Olson and Fldelity and Deposit Company of Maryland, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 279

212 N.E.2d 279

64 Ill.App.2d 144

Robert KELLY, Plaintiff-Appellant, v. Richard OGILVIE, Jack Johnson, H. W. Olson and Fldelity and Deposit Company of Maryland, Inc., Defendants-Appellees.

Gen. No. 49772.

Appellate Court of Illinois, First District, Third Division.

Oct. 7, 1965.

Rehearing Denied Dec. 9, 1965.

Clarence M. Dunagan, James P. Chapman, Chicago, for appellant.

Daniel P. Ward, State's Atty., Cook County, Chicago, Edward J. Hladis, Chief of Civil Division, Ronald Butler, Asst. State's Atty., of counsel, for Ogilvie, Johnson & Olson.

Dent, Hampton & Doten, Chicago, for Fidelity & Deposit Co.

SCHWARTZ, Justice.

This is an appeal from a judgment order dismissing a suit for personal injuries on the ground that the complaint failed to state a cause of action. Plaintiff was an inmate of the County Jail pending trial on a criminal charge. Defendant Ogilvie is Sheriff of Cook County. Defendant Johnson is Warden of the Cook County Jail, and defendant Olson is a jail officer. Defendant Fidelity and Deposit Company of Maryland is surety on the sheriff's official bond given pursuant to statute.

The basis of this action is an attack made on plaintiff by one Craig, a fellow inmate, who, plaintiff alleges, was permitted to enter his cell by one Wilson, also a fellow inmate and a trusty. The principal issues are whether Ogilvie and Johnson are liable for injuries sustained by plaintiff on the principle of respondeat superior or on the basis of negligence in that they maintained a 'barn boss' or trusty system in the conduct of the jail, and whether the complaint states a case against Olson for provoking or participating in the attack.

The sheriff is charged by law with the administration of the county jail. Ill.Rev.Stat., ch. 75, sec. 2 (1963). Pursuant to section 3 of the same act, the sheriff had appointed Johnson as warden (superintendent) of the jail and defendant Olson as one of the jail officers. The complaint charges that on the night in question Richard Ogilvie, 'through his agents and servants, H. W. Olson and F. Wilson, * * * unlocked the cell of H. Craig, a prisoner of vicious propensities, for the purpose of having H. Craig commit an assault upon Robert Kelly, plaintiff herein.' It further charges that defendants knew or in the exercise of ordinary care and caution should have known that the appointment of Wilson as 'barn boss,' with access to cell keys and power to put prisoners from one cell to another, permitted Wilson to place Craig in Kelly's cell for the sole purpose of torturing Kelly, and that Craig did then commit a violent assault upon the plaintiff. Ambiguities in the complaint should be noted. One paragraph charges that Olson, like Ogilvie and Johnson, was guilty of nonfeasance and malfeasance, but makes no claim that he took an active part. Another paragraph alleges that Ogilvie, through Olson and Wilson, unlocked Craig's cell for the purpose of having him commit the assault, as hereinbefore set forth.

Ogilvie and Johnson are not accountable for Olson's or Wilson's alleged wrongdoing upon any rule of agency or respondeat superior. According to long standing rules, a public official having the direction of a subordinate public employee is not thereby responsible for the latter's conduct. It is the underlying public body which is the principal or master. Reiter v. Illinois National Cas. Co., 397 Ill. 141, 152, 73 N.E.2d 412, cert. denied, sub nom., Reiter v. Palmer, 332 U.S. 791, 68 S.Ct. 100, 92 L.Ed. 373; 67 C.J.S. Officers § 128, (1950); 1961 Ill.L.F. 505, 510-11. In the instant case the public entity, the county, is not a party and its immunity or liability by virtue of express statutory provisions or the decisions construing them need not be considered.

It is also charged that Ogilvie and Johnson are liable for allowing the 'barn boss' system to exist. The choice of systems of prison administration involves the exercise of discretion and comes within the doctrine of quasi-judicial immunity. Cf. Nagle v. Wakey, 161 Ill. 387, 43 N.E. 1079; People ex rel. Schreiner v. Courtney, 380 Ill. 171, 43 N.E.2d 982; Paoli v. Mason, 325 Ill.App. 197, 59 N.E.2d 499. This doctrine rests on the principle that the public decision maker, like the judge, ought to be shielded from personal liability or other factors extraneous to a judgment based on his best perception of public needs. The 'barn boss' system for policing the prison community may lend itself to abuses, but it is in general use and has been considered an aid in the maintenance of prison safety and welfare. There are other alternatives, of course, but the choice is for the sheriff and the warden...