107 Ill. 334 | Ill. | 1883
delivered the opinion of the Court:
This suit was brought' by appellant in the Superior Court of Cook county, against the city of Chicago, to recover damages sustained by appellant by a collision between his carriage and a hook and ladder wagon of the city, through the alleged neglect of the driver of the ladder wagon, whilst in the service of the appellee in saving property from destruction by fire. A general demurrer was filed’ to the declaration, and sustained by the court, and a judgment rendered against plaintiff for costs. The case was taken to the Appellate Court, and the judgment was affirmed, and it is brought tq this court, and the sustaining of the demurrer is assigned for error.
The question presented is, whether the relation of master and servant exists between the driver of the ladder wagon and the city, and it is responsible for the negligent acts of the driver whenever engaged in the performance of his duty under the ordinance of the city, or whether the relation is an exception to the general rule. It has long been settled, and perhaps never questioned, that the master is liable for injury from the negligent acts of his servant whilst performing acts within the line of his duty. But the whole^question here turns upon whether that relation exists.
Appellant contends that inasmuch as the city voluntarily undertook to, and did, organize a fire department, which is under the entire control of the city, and as it appoints its officers, pays them and the firemen, and discharges them through its officers, and the whole department is controlled, regulated, and its duties prescribed, by city ordinance, nothing more can be required to create the relation of master and servant between it and its employés. The department is as completely under the control of the city as the board of public works, or any other department of the city government.
The 64th clause of section 62, of chapter 24, Rev. Stat. 1874, confers the power “to erect engine houses, and provide fire engines, hose carts, hooks and ladders, and other implements for prevention and extinguishment of fires, and provide for the use and management of the same, by voluntary fire companies or otherwise.” It is claimed this but confers a power that the city is at liberty to exercise, or not, at will ; that it is in no sense compulsory, but its exercise is purely voluntary, and the city having chosen to organize and control the department, it is unlike, in its effects and consequences, the exercise of a power imposed upon the city by legislative requirement,—this is voluntary and that would he compulsory, and this should make a difference in the two cases; that if the legislature had compelled the exercise of this power it would have been exercising a portion of the power of the State, and the city should, in,such a case, not be any more responsible for the action of those employés in carrying out the power, than counties for the acts of sheriffs and other officers required by law; .that the city having voluntarily assumed the exercise of this power, it should be-responsible for its proper and reasonable exercise. These are the grounds urged for a reversal of the judgment of the court below.
On turning to the reported cases of the courts of other States, we find a uniform line of decisions holding that cities are not liable for the negligent acts of the officers or men employed in their fire departments whilst in the discharge of their duty, thus creating an exception in this class of cases to the general rule of respondeat superior. In his work on Municipal Corporations, Dillon (1st ed. sec. 774,) says : “So, although a municipal corporation has power to extinguish fires, to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires,, it is not liable for the negligence of the firemen appointed and paid by it, who, when engaged in the line of their duty, upon an alarm of fire ran over the plaintiff, in drawing a hose reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff caused by the bursting of the hose of one of the engines of the corporation, through-the negligence of a member of the fire department. The exemption from liability is placed upon the grouhd 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; that the members of the fire department, although appointed hy the city corporation, are not the agents and servants of the city, for whose conduct it is liable, but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city without being expressly given, and the maxim respondeat superior has, therefore, no application.” He refers to the cases of Hafford v. New Bedford, 16 Gray, 297, and Fisher v. Boston, 104 Mass. 87, which support the text. In New York the same doctrine is applied in Maximilian v. Mayor, 62 N. Y. 160, and Smith v. Rochester, 76 id. 513. In Connecticut, in the case of Jewett v. New Haven, 38 Conn. 368. In Iowa, in Ogg v. Lansing, 35 Iowa, 495, and Field v. Des Moines, 39 id. 575. In Missouri, by Heller v. Mayor, 53 Mo. 159. In California, in Howard v. San Francisco, 51 Cal. 52. The same doctrine has been announced by the Supreme Court of Ohio.
In favor of the doctrine, it may be that an additional, if not more satisfactory, reason for its adoption and rendering it an exception to the general rule may be found in public policy. If liable for neglect in this case, the city must be held liable for every neglect of that department, and every employé connected with it, when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employés had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person’s, property within the limits of its jurisdiction. It would assuredly become too burthensome to be borne by the people of any large city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions.- When the excitement is over and calm reason assumes its sway, it may appear to many where other methods could have been adopted to stay destruction, that appear plausible as theories, and their utter fallacy can not be demonstrated by any actual test. To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, burthens than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority.
The judgment of the Appellate Court mustobe affirmed.
Judgment affirmed.
