7 Ill. App. 438 | Ill. App. Ct. | 1880
This case was before us at the last previous term, and an opinion was concurred in by the whole court, reversing the judgment below, on the grounds that there was evidence upon the trial, tending to support all the necessary elements of the plaintiffs’ cause of action; and that it was therefore erroneous for the court, by peremptory instructions, to withdraw the case from the consideration of the jury. Also, that the court below had erred in sustaining a demurrer to the tenth count of the plaintiffs’ declaration. Upon petition by defendant, a rehearing was allowed; and the case has been elaborately re-argued at the present term, by counsel for both parties, and reconsidered by the court. Upon such reconsideration, the court was divided in opinion, as to the question, whether the court below erred in giving such peremptory instructions to the jury, as the case then stood, and upon the evidence introduced. But it agreed in the opinion, that the court erred in sustaining the demurrer of defendant to plaintiffs’ tenth count.
In order to test the sufficiency of the matters set out in the tenth count, it will be well to consider the nature of the action on the case. “ It is founded,” says Chief Baron Comyns, upon a wrong. In all cases, where a man has a temporal loss or damage by the injury of another, he may have an action on the case.” Com. Dig. Tit. Action on tile case, A. This injury may be caused by the unlawful act of another, or from the careless and negligent manner, in which a lawful act is performed. It is not every act productive of injury to another, that lays the foundation of this action; for, says the same eminent judge, “it does not lie for a reasonable use of my right, though it may be to the annoyance of another.” Com. Dig. Tit. Action up in the case for a Nuisance, C; Burroughs v. Housatonic Railway Co. 15 Conn. R. 124.
“ Actions on the case are founded on the common law, or upon acts of parliament, and generally lie to recover damages for torts not committed with force, actual or implied.” 1 Chit. Plead. 132.
To constitute a tort, two things must concur — actual or legal damage to the plaintiff", and a wrongful act committed by the defendant. Bayley, J., in Bex. v. Papham Commissioners, etc., 8 B. C. 862; or, as observed by Hobart, Ch. J., in Waterer v. Freeman, Hob. 266: “ There must be a damage already fallen upon the party, or inevitable; there must also be a thing done amiss.”
By injuria is meant a tortious act; it need not be willful and malicious, for, though it be accidental, if it be tortious, an action will lie. Willes, Ch. J., in Winsmore v. Greenbank, Willes’ B. 581. The only basis of recovery in this case upon any of the counts of the declaration must, therefore, be either that the damages to plaintiffs were the result of an unlawful act on the part of defendant, or negligence in the performance of a lawful act; for, however grievous the damage may be which one man may sustain at the hands of another, yet if such damage be the result of inevitable accident, or a lawful act done in • a lawful manner, without any carelessness or negligence, there is no legal injury and no tori giving rise to an action for damages. These principles were recognized and applied by the Supreme Court of the United States in the Hitro-glycerine case, Parrott v. Wells, Fargo & Co. 15 Wallace, 524.
It can not be doubted that it is competent for the legislature of this State to delegate to municipal corporations, like Chicago, the power to pass ordinances; and jt is well settled that such ordinances, when within the legislative authority given, have the force, as to all persons bound by them, of laws passed by the legislature of the State. Dillon on Mun. Corp. 1st Ed. Sec. 245, arid cases cited in note 2.
The second clause of the ordinance set out in the said tenth count declares: “ And it shall be unlawful to keep for sale, or on storage, any refined carbon oil, kerosene, or other products —for illuminating purposes — of coal, rock or earth oils, excepting such refined oil as will stand a fire-test of one'liundred degrees of Fahrenheit, according to the method and directions of John Tagliabue; and it shall not be lawful to keep ” [for sale or on storage] ££ any quantity of said articles exceeding one barrel of forty-five gallons, in any part of a building, excepting a cellar, the floor of which shall be five feet below the grade of the adjacent streets.” The first clause of that ordinance is expressly applicable to any person or persons or corporation; the clauses are connected by a copulative conjunction, and there being nothing contained in them tending to show a contrary intention, they must be construed as applying to and binding upon the defendant corporation, the same as if it were a natural person.
Although it is not averred in so many words that the defendant wrongfully, and contrary to said ordinance had and kept the prohibited articles on storage upon its premises, yet it is averred that the defendant, not regarding its duty in that behalf, nor the said ordinance, did, on, etc., have, and store in its said building large quantities, etc., then specifying the prohibited articles and quantities, so as to bring the act within the prohibition of such ordinance. These averments, we must hold as sufficient to show that the act of having such articles in store upon tho defendant’s premises at the time in question was unlawful. The act being unlawful, the count then showing with reasonable certainty that plaintiffs sustained actual damage as a proximate result of such unlawful act, cannot be regarded otherwise than as stating a cause of action within the rules of law, above laid down. The court below, therefore, erred in sustaining the defendants’ demurrer to it, for which reason the judgment must he reversed, and the cause remanded for further proceedings.
Reversed and remanded.