Gravander v. City of Chicago

• Decision Date: 18 March 1948
• Docket Number: No. 30131.,30131.
• Citation: 78 N.E.2d 304,399 Ill. 381
• Parties: GRAVANDER v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

399 Ill. 381

78 N.E.2d 304

GRAVANDER

v.CITY OF CHICAGO.

No. 30131.

Supreme Court of Illinois.

March 18, 1948.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Daniel P. Trude, Judge.

Action by Rebecca Gravander against the City of Chicago to recover damages for injuries sustained in a collision between plaintiff's automobile and a municipal garbage truck. From a judgment of the Appellate Court, 330 Ill.App. 431, 71 N.E.2d 370, affirming a judgment for plaintiff, defendant appeals.

Affirmed.

Benjamin S. Adamowski, Corp. Counsel, of Chicago (L. Louis Karton, Louis H. Geiman, and Adam E. Patterson, all of Chicago, of counsel), for appellant.

Harry S. Posner and Joseph D. Ryan, both of Chicago (Arthur Ryan, of Chicago, of counsel), for appellee.

THOMPSON, Justice.

Plaintiff, Rebecca Gravander, appellee here, filed suit in the circuit court of Cook County against the City of Chicago for injuries sustained through the alleged negligence of defendant's employee in the operation of a truck owned and used by the city in the collection of garbage. The cause was tried by a jury which returned a verdict for the plaintiff in the sum of $2,000. Motions for judgment notwithstanding the verdict and for a new trial being overruled, judgment was entered on the verdict for this amount. On appeal to the Appellate Court, the judgment of the lower court was affirmed, 330 Ill.App. 431, 71 N.E.2d 370, and, leave to appeal being granted, the cause is now before this court for determination.

The record discloses that on the night of September 9, 1942, around 10:20 o'clock, the appellee was riding in the back seat of her automobile which was being driven by her son, George Gravander. The car was traveling west on One Hundered Fifteenth Street in the city of Chicago, straddling the north rail of a single streetcar track running east and west on said street. The garbage truck belonging to the city was traveling east on said street straddling the south rail. When the two cars reached the intersection of One Hundred Fifteenth Street and Indiana Avenue the collision occurred which resulted in the damages as claimed.

The sole question presented is whether the city of Chicago was exercising a governmental function in the collection and disposition of garbage, or whether it was engaged in a proprietary function and therefore subject to tort action.

It is urged by appellant that the city of Chicago, in the collection and disposition of the garbage of the city, is acting as the agent of the State for the prevention and suppression of disease as a public health measure, and is rendering it service under the police power delegated by the General Assembly, and that such service is therefore a governmental function. It is further urged that the overwhelming weight of foreign authority holds with the Illinois decisions that, under the police power imposed upon it by the legislature, a municipality, in the collection and disposal of garbage is performing a governmental function in the interest of public health for the prevention and suppression of disease.

On the other hand, the appellee contends that in the collection and disposal of garbage, the city of Chicago is exercising a corporate as distinguished from a governmental function and is liable for the negligent operation of its garbage trucks. And, further, in the disposal of sewage, which has a much more intimate relationship to public health than the collection of garbage, the settled law of this State is that the municipality is liable for the torts of its sevant.

To attempt to point out the divergent views in the many cases cited in the briefs of the parties to this lawsuit would unnecessarily extend this opinion and would rather present further confusion and conflict. It is safe to say the line between municipal operations that are proprietary and therefore a proper subject of suits in tort, and those that are governmental and therefore immune from such suits, is not clearly defined. Powers and functions held to be governmental or public in one jurisdiction are sometimes held to be corporate or private in another, and it has often been said that it is impossible to state a rule sufficiently exact to be of much practical value in deciding when a power is public and when private. As has been said in the case of City of Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 538, 67 L.Ed. 937, 29 A.L.R. 1471, ‘The basis of the distinction is difficult to state, and there is no established rule for the determination of what belongs to the one or the other class. It originated with the courts. Generally it is applied to escape difficulties, in order that injustice may not result from the recognition of technical defenses based upon the governmental character of such corporations.’

It is urged by the appellant that this court has held in the case of Consumers' Co. v. City of Chicago, 313 Ill. 408, 145 N.E. 114, that the collection, removal and disposal of garbage and other noxious and unwholesome substances accumulating within its limits is a sanitary measure exercised by the city for the promotion of the public health; that what was said by the Appellate Court in the cases of Wasilevitsky v. City of Chicago, 280 Ill.App. 531, and Schmidt v. City of Chicago, 284 Ill.App. 570, 1 N.E.2d 234, is contrary to the holding in the Consumers case and indicates a misconception by the Appellate Court of the rule of law which this court there laid down, and that such holding should specifically be overruled.

From an analysis of the Consumers case we hardly see how it could reasonably be said that it is controlling in view of authority which holds to the contrary, and under the facts and circumstances as presented in the instant case. In the Consumers case the court did not have under consideration the liability of the municipality for the negligence of a driver of its garbage truck. The proceedings there presented the question of the validity of an ordinance wherein a taxpayer sought to restrain the purchase by the city of land to be used as a gargage dump, and it was held that the purchase...