145 Ill. App. 38 | Ill. App. Ct. | 1908
delivered the opinion of the court.
The record in this case presents the question whether the declaration sets out substantially a cause of action against the City of Chicago.
Upon an examination of the declaration it will be perceived that the gravamen of the charge against the city is its failure to discharge its duty to exercise reasonable care in keeping the sidewalk in question in reasonably safe condition for ordinary travel, in that it did not cause the awning to be removed when it knew it was dangerous. In thus stating the case made by the declaration we take the substantive facts averred and ignore the particular averments of duty as to the city, for it is from the facts averred that the duty, if any, arises under the law. No permission is averred on the part of the city to erect and maintain the awning. The, negligence averred is the failure to remove the unsafe awning. If we are correct in this conclusion, it follows that the cause of action laid in the declaration amounts to this that the agents or police officers of the city were remiss in duty and therefore guilty of negligence in not removing from the public street the weak and dangerous awning attached to private property and extending out over a part of the public street. This presents the question whether such omission or negligence on the part of the police officers or agents of the city constitutes a ground of private action against the city in favor of one injured on account thereof. The solution of this question depends upon the nature of the power and duty invoked.
In Oliver v. Worcester, 102 Mass. 489, Justice Gray, speaking for the court, says: “The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, as the management of property and rights held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public ’ \
This distinction is clearly stated by Mr. Justice Bailey, speaking for the court in Culver v. City of Streator, 130 Ill. 238. The cause'of action declared on in that case was injury caused by the negligent and careless acts of the servants of the city while destroying dogs running at large contrary to a city ordinance. The court said, in discussing the declaration, at page 243: “Merely denominating him a servant or employe does not make him such in a sense calling for an application of the maxim respondeat superior. Whether he was a servant or employe in that sense depends mainly upon whether he was employed to perform acts which the corporation could do in its private or corporate character, or acts which the corporation was empowered to do in its public capacity as a governing agency, and in discharge of duties imposed for the public or general welfare. Acts performed in the exercise of the police power plainly belong to the latter class”.
In the one case there is an implied or common law liability for the negligence of the officers in the discharge of such duties, and in the other no private action lies unless it is expressly given by statute. Oliver v. Worcester, supra; Detroit v. Corey, 9 Mich. 165; Dillon on Municipal Cor., (4th Ed.) Vol. 2, Secs. 974 to 980, inclusive, and cases cited in notes; Town of Odell v. Schroeder, 58 Ill. 353; Wilcox v. City of Chicago, 107 Ill. 334, and cases determined in Massachusetts, New York, Connecticut, Iowa, Missouri and California there cited. In Wilcox v. City of Chicago, supra, the exemption from liability is placed on the ground that " the service is performed by the corporation in obedience to an act of the legislature, is one in which the corporation has no particular interest, and from which it derives no special benefit in its corporate capacity”, and upon the additional ground of public policy.
The ground of liability alleged in the declaration in this case,—the failure to remove from the public street the weak and dangerous awning attached to private property and extending out over a part of the public street, but not resting upon or attached to the street, relates in our opinion to the failure to perform acts which the city is empowered to do as a governing agency and in discharge of duties imposed for the public or general welfare, and the maxim respondeat superior does not apply to such acts, or to an omission or failure to perform them.
We are aware of the conflict of authorities upon this subject, some of which, namely: Bohen v. City of Waseca, 32 Minn. 176; Bieling v. City of Brooklyn, 120 N. Y. 98, are cited by appellee, but we are disposed to follow the general current of the decisions of our Supreme Court as we understand them, and in doing so we are compelled to hold that the declaration in this cause does not state a canse of action against the appellant, City of Chicago.
In our opinion, the trial court erred in refusing to permit appellee, a witness called in his own behalf, to answer the questions put to him on cross-examination in regard to his life and habits prior to the accident, and calculated to draw from him the fact of his conviction of a crime against the election laws of the State, and that he had been confined in the penitentiary. The facts called for by the questions also had a bearing on the question of damages. If on such testimony as he might give the jury might find that appellee had been confined in the penitentiary at hard labor, and from the character of the work which he did while there, and his physical environment, the action of his heart and his kidneys had been thereby affected, there would be a basis for finding that the injuries which he suffered from the falling of the awning were less than they appeared to be from his direct examination.
For the errors indicated the judgment of the Superior Court is reversed and the cause is remanded.
Reversed and remanded.
