Bennett v. Illinois Power & Light Corp.

• Decision Date: 06 April 1934
• Docket Number: No. 22108.,22108.
• Citation: 189 N.E. 899,355 Ill. 564
• Court: Illinois Supreme Court
• Parties: BENNETT v. ILLINOIS POWER & LIGHT CORPORATION.

355 Ill. 564

189 N.E. 899

BENNETT

v.ILLINOIS POWER & LIGHT CORPORATION.

No. 22108.

Supreme Court of Illinois.

Feb. 23, 1934.

Rehearing Denied April 6, 1934.

Error to Appellate Court, Second District, on Appeal from City Court of Kewanee; H. Sterling Pomeroy, Judge.

Action by Mabel Bennett against the Illinois Power & Light Corporation. Judgment for plaintiff was affirmed (271 Ill. App. 182), and defendant brings certiorari.

Reversed.

FARTHING, DE YOUNG, and STONE, JJ., dissenting.Thomas J. Welch, of Kewanee, and E. Bentley Hamilton, of Peoria, for plaintiff in error.

James H. Andrews, Gregg A. Young, and Harper Andrews, all of Kewanee, for defendant in error.

SHAW, Justice.

The defendant in error, Mabel Bennett, as plaintiff in the city court of Kewanee, recovered a verdict and judgment for $9,600 against the plaintiff in error. The Appellate Court for the Second District having affirmed the judgment, the cause is here on writ of certiorari by leave of this court.

The plaintiff's declaration was in two counts. The first count alleged that she was riding in a buggy behind a horse which was driven by a nineteen year old boy; that the defendant had, shortly prior to this occasion, negligently, carelessly, and unlawfully placed upon the south side of the public highway three spools of electric transmission wire, which were round in form and about four feet in diameter and stood edgewise in the grass and weeds along the south side of the beaten track of the highway; that they were of aluminum color and stood twelve or fifteen feet north of the hedge fence along the south side of the highway. It then proceeds to allege the facts of due care, the horse becoming frightened at the spools of wire, the resultant injury, etc. The second count is based upon an alleged violation of section 151 of the Road and Bridge Act (Smith-Hurd Rev. St. 1933, c. 121, § 167, Cahill's Rev. St. 1933, c. 121, par. 167) which, in so far as material here, is as follows: ‘If any person shall injure or obstruct a public road by felling a tree or trees in, upon or across the same, or by placing or leaving any other obstruction thereon, or encroaching upon the same with any fence, or by plowing or digging any ditch or other opening thereon, or by turning a current of water so as to saturate or wash the same, or shall leave the cuttings of any hedge thereon, for more than ten days, he shall forfeit for every such offense a sum not less than three dollars, nor more than ten dollars; and in case of placing any obstruction on the highway, an additional sum of not exceeding three dollars per day for every day he shall suffer such obstruction to remain after he has been ordered to remove the same by the commissioners of highways,’ etc.

It is alleged in the second count, which, as above noted, is intended to be based upon this statute, that shortly prior to the accident the defendant had ‘negligently placed’ along the south side of the beaten track of the road three large spools of electric transmission wire, and that they were left there by the defendant and remained there contrary to the statute in such case made and provided; that they were calculated to frighten horses driven along the highway; and that as the plaintiff approached the point where the spools had been left and remained, the horse became frightened at the spools and ran away, injuring the plaintiff. The declaration further avers: ‘That the defendant placed the spools of wire along and upon the south side of the public road in violation of the statute of the State of Illinois in such cases made and provided, and because of the violation of that certain statute the horse became frightened and ran away.’

The defense, after various preliminary pleadings and been disposed of, was finally based upon a plea of general issue and notice under the general issue of special matters in defense: (1) That the defendant was authorized by the Illinois Commerce Commission, under its certificate of convenience and necessity, to build the power line where it was being built; and (2) that at the time the spools were placed along the highway the defendant had leave and license of the owner of the fee adjoining the highway to use the same as it was being used. Copies of the right of way easement and the certificate of convenience and necessity were attached to the notice as exhibits.

All of the questions raised by the eight assignments of error can be disposed of by a consideration of the principal points as to whether or not there was a failure of proof under the allegations of the declaration, whether there was any actionable negligence shown by either the declaration or the proof, and whether or not anything done by the defendant was unlawful and at the same time the proximate cause of the alleged injury of the plaintiff.

[4] As this court has many times said, it is elementary that recovery can only be had on the negligence charged in the declaration. Ratner v. Chicago City Railway Co., 233 Ill. 169, 84 N. E. 201;Chicago, Burlington & Quincy Railroad Co. v. Levy, 160 Ill. 385, 43 N. E. 357;Peterson v. Sears, Roebuck & Co., 242 Ill. 38, 89 N. E. 696, and cases there cited. It is the gist of plaintiff's first count that the defendants ‘negligently, carelessly and unlawfully placed upon the south side of said public highway three spools of electric transmission wire,’ etc. It is the gist of the second count that the spools of wire were placed and left there in violation of the statute above referred to. It follows that if neither of these things has been proved or exists the plaintiff cannot be allowed to recover.

In considering the question of whether the spools were placed negligently, carelessly, or unlawfully, the work which the defendant was doing, the title by which it was being prosecuted, and the appliances being used must be considered.There is no dispute in the record but that the defendant was building the line in question pursuant to a certificate of convenience and necessity issued by the Illinois Commerce Commission, nor that the defendant had secured a suitable easement from the owner of the land adjoining the highway at the point in question for the erection of this power line and its incidental overhang above the highway. Neither is there any possible dispute that the spools in question were placed approximately under the overhanging arms to which the wire was later to be attached and that it was necessary for them to be there for the reasonably convenient carrying on of the work.

There is nothing in the record to show that the defendant did any affirmative thing other than was reasonably necessary for the prosecution of the work in which it was lawfully engaged. The coils of wire were brought to the place where they were to be used, were unloaded at that place in a suitable position for their proper use, and were well removed from the traveled or beaten portion of the highway to a place where the public utility company had a right to leave them under its easement from the owner of the fee. It is not even shown in the record or suggested in the argument that the defendant could have done anything to make these necessary and useful objects less frightening to so-called gentle horses.

The fact that a thing is well calculated to frighten a gentle horse cannot, in and of itself, make its use or presence at any particular place a basis for liability ex delicto. There must be something more in the case. If the thing itself is lawful and is being used in a lawful manner at a place and time where it may lawfully be, and if there is nothing negligent or malicious in its use, there can be no liability ex delicto arising therefrom. Such liability must arise from some negligent, malicious, willful, or intentional breach of duty or of law. As this court and many others have said: ‘To constitute a tort there must be the invasion of a legal right of the plaintiff, the violation of a legal duty of the defendant. Damages suffered without the invasion of a legal right or the violation of a legal duty are damages without injury.’ Gillman v. Chicago Railways Co., 268 Ill. 305, on page 309, 109 N. E. 181, 182. See, also, 26 R. C. L. 757; 62 Corpus Juris, 1108; East Tennessee Telephone Co. v. Parsons, 154 Ky. 801, 159 S. W. 584, 586,47 L. R. A. (N. S.) 1021;Simonds v. Maine Telephone & Telegraph Co., 104 Me. 440, 72 A. 175, 176,28 L. R. A. (N. S.) 942;Pettit v. New York Central & Hudson River Railroad Co., 80 Hun, 86, 29 N. Y. S. 1137;District of Columbia v. Moulton, 182 U. S. 576, 21 S. Ct. 840, 841, 45 L. Ed. 1237.

The Supreme Court of the United States has passed on a very similar question, and its decision is important here. In the case of District of Columbia v. Moulton, supra, the facts shown were that a steam roller about eight feet long, eight feet wide, and six feet high had broken down on a street and been left near the curbing. It was covered with a canvas cover, but whether this rendered it more or less frightful to a gentle horse is not stated in the opinion. In denying any liability on the part of the District of Columbia, Mr. Justice White delivered the opinion and in part said: ‘The steam roller in question had been brought to the place where the accident occurred, for a lawful purpose, viz., that of performing a duty enjoined upon the district to keep in repair the streets subject to its control. The use of an appliance such as a steam roller was a necessary means to a lawful end,-a means essential to the performance of a duty imposed by law. It must therefore follow that if in the legitimate and proper use of such machine, with reasonable notice to the public of such use, an injury is occasioned to one of the public, such injury is damnum absque injuria. * * * The District, at best, was only chargeable with notice that the roller was an object which might frighten some horses of ordinary gentleness, not that it would inevitably do so. * * * The District, however, had a...