Kelly v. Ogilvie
| Decision Date | 23 September 1966 |
| Docket Number | No. 39759,39759 |
| Citation | 35 Ill.2d 297,220 N.E.2d 174 |
| Parties | Robert KELLY, Appellant, v. Richard OGILVIE et al., Appellees. |
| Court | Illinois Supreme Court |
Clarence M. Dunagan and James P. Chapman, Chicago, for appellant.
Daniel P. Ward, Sate's Atty., Chicago (Edward J. Hladis and Ronald Butler, Asst. State's Attys., of counsel), for appellees Richard Ogilvie, Jack Johnson and H. W. Olson.
Dent, Hampton & Doten, Chicago (John P. Hampton and Roger D. Doten, Chicago, of counsel), for appellee Fidelity and Deposit Co. of Maryland.
The plaintiff, Robert Kelly, brought this action against the defendants, Richard Ogilvie, Jack Johnson, H. W. Olson, and Fidelity and Deposit Company of Maryland, Inc. The complaint sought to recover damages in the sum of $100,000 on account of personal injuries allegedly sustained by the plaintiff while he was a prisoner in the county jail of Cook County, confined there pursuant to an order of the municipal court of Chicago. It identifies the defendant Ogilvie as the sheriff of Cook County, and alleges that he appointed the defendant Jack Johnson as warden of the county jail, and the defendant H. W. Olson as an officer of the jail. The defendant Fidelity and Deposit Company of Maryland, Inc., is the surety on the sheriff's official bond. The trial court sustained the defendants' motion to dismiss the complaint, and, when the plaintiff elected to stand by his complaint, entered judgment for the defendants. The appellate court affirmed (64 Ill.App.2d 144, 212 N.E.2d 279), and we allowed leave to appeal.
The key allegations of the complaint are as follows:
'11. That on the day and date aforesaid, it became and was the duty of the defendants, Richard Ogilvie, Jack Johnson and H. W. Olson, because of the special relationship between the plaintiff and the defendant (sic), there was an affirmative duty upon the defendants to protect the plaintiff.
'12. That the defendants, Richard Ogilvie, Jack Johnson, and H. W. Olson, on the day and date aforesaid, were guilty of nonfeasance and malfeasance in their failure to fulfill their special duty in that they permitted the appointment of one, F. Wilson, a prisoner assigned to Cell 38, in Block D, Tier 3, of the County Jail, to act as 'tier clerk' or 'barn boss' in that they permitted the said Wilson, barn boss, to have access to keys to the various cells in the above mentioned block and tier.
'13. That the defendant, Richard Ogilvie, through his agents and servants, H. W. Olson and F. Wilson, in the nighttime, 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.
'14. That the defendants, and each of them, knew or in the exercise of ordinary care and caution, should have known, that the appointment of F. Wilson as barn boss who had access to cell keys, and was permitted to put prisoners from one cell into another, to torture weaker or sick prisoners, permitted F. Wilson, 'barn boss', to place H. Craig, a prisoner of vicious propensities, into the cell of Robert Kelly, plaintiff, for the sole purpose of torturing the plaintiff herein.
'15. That the practice of appointing prisoners as 'barn bosses' had continued in the County Jail of Cook County for a long period of time prior to September 17, 1963, and the defendants knew of such practice.'
The appellate court held that paragraph 13 of the complaint was intended to state a claim against the sheriff, Ogilvie, on the basis of Respondeat superior, and not to state a claim against the jailer, Olson, predicated upon his own wilful misconduct. That paragraph of the complaint might be read as charging Olson with deliberately participating in an unprovoked assault upon the plaintiff by Craig. Such a reading, however, is not urged by the plaintiff, perhaps because it might be thought to militate against liability under the Sheriff's Indemnification Act (Ill.Rev.Stat.1961, chap. 34, par. 301.1), which bars indemnification for wilful misconduct. In any event, the plaintiff does not contend in this court that paragraph 13 charges the defendant Olson with participation in a deliberate assault upon the plaintiff.
The appellate court also held that the complaint failed to state a cause of action against the sheriff and the warden under the doctrine of Respondeat superior. As that doctrine applies to most public officers, the principal or master who must respond is the public body itself, and not the officer or an intermediate public official. (Reiter v. Illinois National Casualty Co., 397 Ill. 141, 73 N.E.2d 412, cert. denied, sub nom., Reiter v. Palmer, 332 U.S. 791, 68 S.Ct. 100, 92 L.Ed. 373; cf. Restatement of Agency 2d,...
To continue reading
Request your trial
-
Bonner v. Coughlin
...appear to possess no state immunity that would prevent their being sued in the Illinois circuit courts. Cf. Kelly v. Ogilvie, 35 Ill.2d 297, 220 N.E.2d 174 (1966). 24 Even in cases in which the state has the opportunity to choose between holding a hearing before any taking of property occur......
-
Tcherepnin v. Franz
...or the establishment of significant public policy. See Kelly v. Ogilvie, 64 Ill.App.2d 144, 212 N.E.2d 279 (1st Dist. 1965), aff'd, 35 Ill.2d 297, 220 N. E.2d 174 (1966); Bush v. Babb, 23 Ill. App.2d 285, 162 N.E.2d 594 (1st Dist. 1959); Paoli v. Mason, supra; Baum, Tort Liability of Local ......
-
Andrews v. Metro. Water Reclamation Dist. of Greater Chi.
...179 Ill.Dec. 980, 606 N.E.2d 812 (1992) (citing Kelly v. Ogilvie , 64 Ill. App. 2d 144, 147, 212 N.E.2d 279 (1965), aff'd 35 Ill. 2d 297, 220 N.E.2d 174 (1966) ). The principle underlying this immunity is that public decision makers, like judges, should be free to make decisions and exercis......
-
Wallace v. Masterson
...public body which is the principal or master." Kelly v. Ogilvie, 64 Ill.App.2d 144, 212 N.E.2d 279, 281 (1965), aff'd, 35 Ill.2d 297, 220 N.E.2d 174 (1966); see also 745 ILCS 10/9-102 ("A local public entity [i.e., the Sheriff's Office] is empowered and directed to pay any tort judgment or ......