City of Chicago v. Murdoch

• Decision Date: 24 October 1904
• Citation: 212 Ill. 9,72 N.E. 46
• Parties: CITY OF CHICAGO v. MURDOCH et al.
• Court: Illinois Supreme Court

212 Ill. 9

72 N.E. 46

CITY OF CHICAGO

v.MURDOCH et al.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Action by Thomas Murdoch and others against the city of Chicago. From a judgment of the Appellate Court affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Thomas J. Sutherland (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellant.

Wilson, Moore & McIlvaine, for appellees.

This is an action on the case brought by the appellees against the appellant to recover for damages to their building resulting from the use of dynamite in the construction of a tunnel for the city. On September 15, 1895, the city entered into a contract with J. J. Duffy for the construction of a portion of a water tunnel under the surface of the ground, extending from a point near the center of Green street and Grand avenue to the pumping station at the corner of Filmore street and Central Park avenue, a distance of about four miles. The plaintiffs owned a fourstory and basement building, having a frontage of about eighty feet, immediately west of Union Park Place, known as Nos. 530-536 West Lake street. The work on the portion of the tunnel in the vicinity of plaintiffs' building was done in May and June, 1896. The tunnel extended through or under the southeast corner of the block in which the building is located, and, in making the excavation, dynamite was used by the contractor to the extent that the building was jarred and shaken so that the walls were cracked and caused to settle, finally falling into such a dangerous condition that the city, through its building commissioner, notified the plaintiffs to repair the same within five days, and in default of their doing so the city would proceed against them according to law. Upon a trial before the court and a jury, judgment was rendered for the plaintiffs for $1,400 and costs, which has been affirmed by the Appellate Court, and hence this appeal.

WILKIN, J. (after stating the facts).

The principal grounds of reversal insisted upon by counsel for appellant are stated as follows in their argument: (1) ‘The circuit court erred on the trial in permitting the witness for the appellees, William D. Kent, to answer the following question on his direct examination: ‘I will ask whether you, on behalf of the city, made any objection to the use of dynamite in bowlder clay, running from the Carroll avenue shaft west.’' (2) ‘The circuit court erred on the trial in giving to the jury the appellees' first and second instructions.’ (3) ‘The circuit court erred on the trial in refusing at the close of the evidence to exclude the same from the jury, and to instruct the jury to find the city not guilty.’ (4) ‘The verdict and judgment were and are against the law and the evidence.’ (5) ‘The circuit court erred in overruling the motion for a new trial and rendering judgment on the verdict.’

It is not denied that the evidence fairly tended to prove the plaintiffs' case on their theory, but the contention is that the acts charged in the declaration as causing the injury were the wrongful or negligent acts of an independent contractor, for which the municipality is not liable. Hence the second, third, and fourth of the foregoing alleged errors involved the same legal questions, and may be properly considered together. The general rule is that the principle of respondeat superior does not extend to cases of independent contractors where the party for whom the work is done is not the immediate superior of those guilty of the wrongful act, and has no control over the manner of doing the work under the contract. 2 Dillon on Mun. Corp. (3d Ed.) § 1028. But the same author says in the following section: ‘The general rule is stated in the preceding section, but it is important to bear in mind that it does not apply where the contract directly requires the performance of a work intrinsically dangerous, however skillfully performed. In such a case the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself, or lets it out by contract.’ We adopted and applied that rule, with the above exception as applied to a municipal corporation, in City of Joliet v. Harwood, 86 Ill. 110, 29 Am. Rep. 17, and again in Village of Jefferson v. Chapman, 127 Ill. 438, 20 N. E. 33,11 Am. St. Rep. 136, and in the latter case quoted with approval the language of Judge Dillon set forth in section 1029. Another exception to the general rule applicable to this case is that, where an individual or a corporation does work pursuant to a special franchise or charter power, the doctrine of respondeat superior is applicable. North Chicago Street Railroad Co. v. Dudgeon, 184 Ill. 477, 56 N. E. 796, and authorities cited. Especially see West v. St. Louis, Vandalia & Terre Haute Railroad Co., 63 Ill. 545; 16 Am. & Eng. Ency. of Law (2d Ed.) 201. In the recent case of Fitz Simons & Connell Co. v. Braun & Fitts, 199 Ill. 390, 65 N. E. 249,59 L. R. A. 421, we said (page 394, 199 Ill., and page 250, 65 N. E.,59 L. R. A. 421): ‘The performance of the work of excavating the tunnel underneath the buildings of a populous city with dynamite was intrinsically dangerous, no matter how carefully and skillfully the explosions were conducted. The nature and power of dynamite as an explosive have been demonstrated by universal experience, and it is a matter of common knowledge that the use of dynamite as an explosive is intrinsically dangerous, and of this the courts will take judicial notice. 17 Am. & Eng. Ency. of Law (2d Ed.) 909; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 527, 28 Atl. 32.’ The work contracted to be done in this case was by virtue of the corporate powers of the city of Chicago, and the case is therefore clearly within both of the foregoing exceptions.

It is also the settled law of this state that when a municipal corporation contracts for the making of a public improvement under the supervision of its own engineer or other proper officer, and subject to his orders, the corporation is liable for damages caused by the negligence of the contractor; the doctrine of respondeat superior being applicable. In City of Chicago v. Joney, 60 Ill. 383, it was insisted by the city that under its contract with its contractors, Fox, Howard & Walker, the latter were not its servants, ‘but independent contractors, and alone liable for damages occasioned by the manner in which the work was done’; and it was there said (page 387): ‘Portions of the contract are found in the record, in which it appears the city retained a supervisory control over the work, and had power to dismiss any person employed by the contractors on the work; and the dismissions of the board of public works, who represented the city, were final and conclusive in every case that might arise under the contract. Here was dependence-serviency-in the contractors, and for their negligence the doctrine of respondeat superior must apply. By the contract the entire work was to be under the immediate direction and superintendence of the city, through the board of public works. The principle is well settled, when a contractor is under the direction and control of his employer, the employer is liable for the negligence of the contractor.’ The same doctrine was announced and followed in City of Chicago v. Dermody, 61 Ill. 431.

Upon looking into the contract between the city of Chicago and the contractor, Duffy, we find that it was signed by W. D. Kent, commissioner of public works, on behalf of the city, and contains, among other provisions, the following: ‘All of the material used in said work, manner, time and place of doing same, together with all things therewith connected, must be in each and every particular satisfactory to the commissioner of public works of said city.’ ‘Said work shall be done in accordance with plans prepared for the doing of the same. * * * Said work shall be commenced on or before the first day of October, A. D. 1895, shall progress regularly and uninterruptedly after it shall have been begun, except as shall be otherwise ordered by the commissioner of public works,’ etc. ‘Should the commissioner of public works deem it proper or necessary, in the execution of the work, to make any alterations which shall increase or diminish the expense, such alterations shall not vitiate or annul the contract or agreement hereby entered into, but the said commissioner shall...