Barnes v. City of Chicago

• Decision Date: 28 October 1926
• Docket Number: No. 16935.,16935.
• Citation: 153 N.E. 821,323 Ill. 203
• Parties: BARNES v. city of chicago.
• Court: Illinois Supreme Court

323 Ill. 203

153 N.E. 821

BARNES

v.city of chicago.

No. 16935.

Supreme Court of Illinois.

Oct. 28, 1926.

Action by Maggie Barnes against the City of Chicago. Judgment for defendant was affirmed by the Appellate Court (237 Ill. App. 464), which court granted certificate of importance, and plaintiff appeals.

Affirmed.

Appeal from Third Branch, Appellate Court, First District, on Error to Circuit Court, Cook County; Franklin J. Stransky, Judge.

E. H. Morris and Alva L. Bates, both of Chicago, for appellant.

Francis X. Busch, Corporation Counsel, of Chicago (Cora B. Hirtzel, of Chicago, of counsel), for appellee.

DE YOUNG, J.

Maggie Barnes, the appellant, brought an action against the city of Chicago, the appellee, in the circuit court of Cook county, for damages, predicated upon section 5 of an act entitled ‘An act to suppress mob violence,’ approved May 16, 1905, in force July 1, 1905. Smith's Stat. 1925, P. 938. The declaration contained two counts. The first charged that there assembled in the city more than five persons for the unlawful purpose of offering violence to the person and property of any one supposed to have been guilty of a violation of the law and to exercise correctional and regulative powers by violence and without lawful authority; that the mob, composed of such persons, while so assembled, did with great force and violence lynch, shoot, and kill John W. Simpson, plaintiff's son, an unmarried man; that he left surviving the plaintiff, his mother and lineal heir, and that she was dependent upon him for support. In additionto the allegations concerning the unlawful assemblage, the killing of Simpson by the mob, and the plaintiff's dependency upon him, as set forth in the first count, it was alleded in the second that Simpson was a police officer of the city of Chicago; that he received an annual salary of $1,500; that he supported his mother, the plaintiff; and that notice of the plaintiff's claim had been given the city, as required by statute. The city's demurrer to the declaration was sustained. The plaintiff elected to stand by her declaration and the suit was dismissed at her costs. Upon a writ of error, the Second Division of the Applellate Court for the First district held that the declaration stated a cause of action and that the demurrer should have been overruled. Accordingly, the judgment was reversed and the cause was remanded. Barnes v. City of Chicago, 225 Ill. App. 31. After the remandment the city filed a plea of the general issue. A jury trial followed, and at the close of the plaintiff's evidence there was a directed verdict for the defendant. Motions for a new trial and in arrest of judgment were made and overruled, and judgment was rendered on the verdict. A writ of error was prosecuted from the Appellate Court for the First district and the Third Division of that court affirmed the judgment. 237 Ill. App. 464. Upon petition, the Appellate Court granted a certificate of importance and allowed an appeal to this court.

At about 6 o'clock in the evening of July 28, 1919, a mob, consisting of a considerable number of persons, was in pursuit of a man who was running east in Thirty-First street, between State street and Wabash avenue, in the city of Chicago. John W. Simpson, a police officer, followed and endeavored to stop the mob. There was much shooting. Simpson was shot in the legs and died as the result of his injuries. He left his mother, the plantiff, surviving, to whose support, it appears, he contributed from $20 to $65 per month.

Section 5 of the act in question (Smith-Hurd Rev. St. 1925, c. 38, § 516) provides:

‘The surviving spouse, lineal heirs, or adopted children of any such other person or persons, who, before the loss of life, were dependent for support upon any other person who shall hereafter suffer death by lynching at the hands of a mob in any county or city in this state, may recover from such county or city damages for injury sustained by reason of the loss of life of such person, to a sum not exceeding five thousand dollars.’

[1] Death by lynching, it will be observed, is a condition essential to recovery. Unless, therefore, a person is lynched, his dependent has no cause of action. The use of the word ‘lynching’ in a statute is sufficient to define the offense, as the term is one of common knowledge. State v. Lewis, 142 N. E. 626, 55 S. E. 600,7 L. R. A. (N. S.) 669,9 Ann. Cas. 604. It is a term ‘descriptive of the action of unofficial persons, organized bands, or mobs, who seize persons charged with or suspected of crimes, or take them out of the custody of the law, and inflict summary punishment on them, without legal trial, and without warrant or authority of law.’ Black's Law Dict. ...