Barker v. Chicago, P. & St. L. Ry. Co.

• Decision Date: 15 February 1910
• Citation: 243 Ill. 482,90 N.E. 1057
• Court: Illinois Supreme Court
• Parties: BARKER v. CHICAGO, P. & ST. L. RY. CO.

243 Ill. 482

90 N.E. 1057

BARKER

v.CHICAGO, P. & ST. L. RY. CO.

Supreme Court of Illinois.

Dec. 22, 1909.

Rehearing Denied Feb. 15, 1910.

Appeal from Appellate Court, Third District, on Appeal from Curcuit Court, Sangamon County; James A. Creighton, Judge.

Action by William F. Barker against the Chicago, Peoria & St. Louis Railway Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

Wilson, Warren & Child, for appellant.

Albert Salzenstein and John L. King, for appellee.

DUNN, J.

The appellee recovered a judgment against appellant for personal injuries, which the Appellate Court affirmed, and the appellant has brought the record to this court for review.

The appellee was a postal clerk in the United States railway mail service, running between Peoria and Springfield over appellant's railroad. His injuries were received while he was attending to his duties in the mail car attached to the appellant's train, and were caused by a collision between that train and two coal cars which had run out upon appellant's main track from a switch connecting such track with an adjoining coal mine. There was evidence tending to show negligence on the part of appellant's servants in permitting the coal cars to come upon the main track.

The appellant claims that it is not liable because in carrying the mail, and the route agent in charge of it, the appellant was a governmental agency performing a governmental function, and was therefore not liable for the negligence of its employés. It further contends that plaintiff was not a passenger; that the highest duty it owed him was the exercise of ordinary care, and that the court erred in instructing the jury that it was appellant's duty to do all that human care, vigilance, and foresight could reasonably do to guard against accidents.

The first question arose upon appellant's motion, at the close of all the evidence, to instruct the jury to return a verdict for the defendant. The switch track from which the coal cars came upon the main track was built and maintained by the railroad company at the mine company's cost, and was used by appellant's switching crews in taking the loaded cars from the mine for transportation. There was a derailing device in the switch track about 135 feet from the main track which had no lock, but could be opended or closed by any person, and it was due to the fact that this device was closed instead of open, as it should have been, that the accident occurred. It was therefore a question of fact whether, under all the circumstances, the appellant was negligent in guarding its main track against cars coming upon it from the switch track, and this question was properly submitted to the jury, unless the appellant's contention is sustained that it was engaged in the performance of a governmental function and therefore not liable for the negligence of its employés. Waiving the question whether the construction of the switch and derailing device in the manner in which they were constructed was not negligence of the appellant itself as distinguished from the negligence of its servants, the case will be considered as if the negligence which the evidence tended to prove were only negligence of the servants of appellant in the discharge of their duty.

The government of the United States has the power to establish post offices and post roads, and has assumed exclusive charge of the carriage and delivery of the mail, prohibiting any private person from engaging therein. In so doing the government is engaged in the discharge of a governmental function. The principle is well recognized that public officers and agents of the government are exempt, as such, from liability to answer for the acts of their subordinates. They are liable for their own personal negligence or defaults in the discharge of their duties, but not for the acts or defaults of inferior officials in the public service, whether appointed by them or not. Robertson v. Sichel, 127 U. S. 407, 8 Sup. Ct. 1286,32 L. Ed. 203. The appellant, however, is not a public officer or a public agent. It is a contractor with the government for the performance of a special service, viz., the carrying of the mail, and the same reason does not exist for holding it exempt from liability for the negligenceof its servants as for holding the Postmaster General or a postmaster exempt from liability for the defaults of those who act under them in the public service, as agents of the government. ‘The responsibility of a public officer for the acts and defaults of those employed by or under him depends upon the question whether such persons are acting in the public service, as agents of the government, by direct appointment or by authorized subappointment, or whether they are his private agents and servants employed by virtue of his individual and independent authority and paid by and responsible to him, whom he can employ, retain, and dismiss at will, ‘in other words, whether the situation of an inferior is a public office or a private service.’ 1 Am. Lead. Cas. 785. If the subordinates are the agents and servants of the officer, not by an official employment, but to assist him, as an individual, in the discharge of his official service, the reason ceases for the nonapplication of the doctrine of respondeat superior and for exemption from liability for their misconduct or negligence.' Central Railroad & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334.

The case just cited was a suit brought by a bank against a railroad company for the loss from the mail of money contained in a registered letter through the negligence of the servants of the company, and it was held that the company would be liable in a proper form of action. In the case of Sawyer v. Corse, 17 Grat. 230, 94 Am. Dec. 445, the Supreme Court of Virginia, after a thorough consideration of the exemption of public officers and agents from responsibility for the acts and defaults of those employed by or under them in the discharge of their public duties, and an examination of the decided cases, held a mail contractor liable to the sender for the loss from the mail, through the negligence of the contractor's servant, of a letter containing money.

The exemption of public officers from responsibility for the negligence or positive wrongs of their subordinates in the discharge of their public duties arises from considerations of public policy. Competent persons would not be willing to accept positions which imposed upon them liability for torts and wrongs committed by subordinates whom they did not appoint and could not discharge. These considerations do not apply to a corporation undertaking, by contract, to perform work or render service for the government for a compensation to be paid to it and with a view to its own profit, and where its subordinates are employed and paid by it and liable to be dismissed at its pleasure. It is said in Sawyer v. Corse, supra: ‘Such a contractor is in no just and proper sense an officer of the government, and though he may be said to be in a certain sense an agent of the government because he is engaged in working for the government, yet the laborers and others whom he employs under him in the execution of his contract cannot be said to be agents of the government, which does not know them, does not appoint them, does not control them, does not pay them, and has nothing to do with them. He is not a public agent because he is working for his own profit by fulfilling a contract which he has bound himself to perform and for which he is to receive compensation.’

The maxim of respondeat superior is founded on the principle that he who expects to derive advantage from an act which is done by another for him must answer for any injury which another may sustain from it. We know of no reason why it should not apply here. The employés of the appellant were not public officers or in any official service or employment. They were not employed for the special service of transporting the mails, but were the private servants of appellant engaged in the work of appellant in the general business of transportation for its benefit and profit, employed by appellant and subject to be discharged at its pleasure. It does not appear that the servants of the appellant by whose negligence the injury to appellee is claimed to have occurred were even incidentally engaged in any way in the transportation of the mails.

Several cases have been cited which have held that a mail contractor is not liable for the loss of property transmitted by mail and lost through the carelessness of...