Hollenbeck v. County of Winnebago

• Decision Date: 18 May 1880
• Citation: 1 Ky.L.Rptr. 198,1880 WL 10017,95 Ill. 148,35 Am.Rep. 151
• Parties: HANNAH HOLLENBECK, Admx.v.COUNTY OF WINNEBAGO et al.
• Court: Illinois Supreme Court

1 Ky.L.Rptr. 198

95 Ill. 148

1880 WL 10017 (Ill.)

35 Am.Rep. 151

HANNAH HOLLENBECK, Admx.

v.COUNTY OF WINNEBAGO et al.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Winnebago county, the Hon. JOHN V. EUSTACE, Judge, presiding.

Mr. N. C. WARNER, for the appellant:

A county is no more a part of the sovereignty of the State than a city; both are created by statute. A county is a body corporate and politic, capable of suing and being sued, etc. Rev. Stat. 306, sec. 22.

It has the express power to make all contracts, and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers. Ibid. sec. 24.

Through its board it has power to take and have the care and custody of all real and personal estate owned by it, and to manage the county funds and business, except as otherwise provided, and to levy and have collected taxes for county purposes. Ibid. sec. 25.

And it is made the duty of the board to erect or otherwise provide, when necessary and the finances of the county will justify it, and keep in repair, a suitable court house, etc. Ibid. sec. 26.

Whatever may have been the common law rule as to the liability of counties for neglect of duty imposed by law on the officials thereof, suit may now be brought against them as corporations, and they are responsible as such for the acts of their officers, either of omission or commission in the sphere of their appropriate duties as required by law, in the same manner as the officers of other corporations.

It is not disputed the county would be liable upon its contract to build a court house in a proper case; yet the statute is silent as to the particular manner of such liability as it is in respect to its liability for torts growing out of such a contract. It simply contains a broad provision that it may sue and be sued. House v. Commissioners of Montgomery County, 60 Ind. 580.

The Iowa decisions are valuable because based upon the statutory powers, and they are uniform that the defendant county is liable. Wilson & Gustin v. Jefferson County, 13 Iowa, 181; Brown v. Jefferson County, 16 Id. 339; Kendall v. Lucas County, 26 Id. 395; Taylor v. Davis County, 40 Id. 295. See also, Commissioners of Anne Arundel County v. Duckett, 20 Md. 468; Wheeler v. Troy, 20 N. H. 77; Dean v. New Milford Township, 5 Watts & S. 545; Erie City v. Swingle,22 Pa. St. 384.

In this case the county built a court house, as it had a right to do, but, in doing it, proceeded so negligently and unskillfully that a large portion of it fell in, and the plaintiff's intestate, while faithfully performing his labor thereon, “exercising all due care and diligence,” thereby met a horrible death; therefore, the county is liable upon settled principles. Citing Conrad v. Trustees of Ithaca, 16 N. Y. 171; Mayor of New York City v. Furze, 3 Hill, 618; Rochester White Lead Co. v. City of Rochester, 3 Com. 467; Barton v. City of Syracuse, 36 N. Y. 54; Emery v. Lowell, 104 Mass. 13; Child v. Boston, 4 Allen, 41; McGregor v. Boyle, 34 Iowa, 268; Requa v. City of Rochester, 45 N. Y. 129; Haines v. Lockport, 50 Id. 236; McCarty v. City of Syracuse, 46 Id. 194; Lloyd v. Mayor of New York, 1 Seld. 369; Baker v. Boston, 12 Pick. 184; Thayer v. Boston, 19 Id. 511; The People v. Corporation of Albany, 11 Wend. 544.

The declaration shows the acts which caused the injury were done under and in consequence of the direction of the county, upon its adopted plans. In such case, the county also having retained the supervision and control of the building during its progress of erection, is to be regarded as the superior, and responsible as such, although it did the work by contract. Nevins v. City of Peoria, 41 Ill. 503; Baker v. Boston, 12 Pick. 184; Thayer v. Boston, 19 Id. 511; Scott v. Mayor, 37 Eng. Law and Eq. 495.

The defendants are jointly and severally liable for a joint tort. All persons concerned in a wrong are liable to be charged as principals. Sands v. Child, 3 Lev. 352; Story on Agency, sec. 309; Smith's Master and Servant, 245-6; Regina v. Longton Gas Co. 2 Ell. & Ell. 651; Rowe v. Addison, 34 N. H. 306; Montfort v. Hughes, 3 E. D. Smith, 691; Richt myer v. Richtmyer, 50 Barb. 55; McIntosh v. Ensign, 28 N. Y. 173.

Even if the county was not liable, the contractors and others were, and it was error to sustain the demurrer to the whole declaration. Board of Comrs. v. White Water Valley Canal Co. 2 Ind. 165.

The defendants, Ferguson, Latham, Haines, Mackey, Merritt, Herring and Kirk, are jointly and severally liable in their capacity as supervisors, and the court erred in sustaining the demurrer to the declaration so far as it charged such defendants. Turney v. Smith, 86 Ill. 391; Adsit v. Brady, 4 Hill, 632; Gardner v. Hearth, 2 Barb. 168; Vandenburg v. Truax, 4 Denio, 465; Latham v. Roach, 72 Ill. 179; Conner v. Adams, 13 Hun. N. Y. 427; Robinson v. Chamberlain, 34 N. Y. 387.

Mr. J. C. GARVER, and Mr. WILLIAM LATHROP, for the appellee:

Upon the point of the non-liability of the county, except in cases where the action is expressly given by statute, we cite the following authorities: Askew v. Hale Co. 54 Ala. 639; City of Richmond v. Lang's Admrs. 17 Gratt. 375; Wheatly v. Mercer Co. 9 Bush, 704; Crowell v. Sonoma Co. 25 Cal. 313; Wehn v. Comrs. of Sage Co. 5 Neb. 494; Freeholders of Sussex v. Strader, 3 Harr. 108; Cooley v. Freeholders of Sussex, 3 Dutch. 415; Hamilton Co. v. Mighels, 7 Ohio St. 109; Eastman v. Meredith, 36 N. H. 284; Riddle v. Locks, etc. 7 Mass. 169; Mower v. Leicester, 9 Id. 256; Chidsey v. Town of Canton, 17 Conn. 475; Beardon v. St. Louis Co. 36 Mo. 555; Soper v. Henry Co. 26 Iowa, 264; Ward v. Hartford Co. 12 Conn. 404; Bigelow v. Randolph, 14 Gray, 541; Fisher v. Boston, 104 Mass. 87; Oliver v. Worcester, 102 Id. 499; Hill v. Boston, 122 Id. 344; Finch v. Board of Education, 30 Ohio St. 37; Hedges v. Madison Co. 1 Gilm. 567; Schuyler Co. v. Madison Co. 4 Id. 20; Waltham v. Kemper, 55 Ill. 346; Russell v. Steuben, 57 Id. 35; White v. Bond Co. 58 Id. 297; Symonds v. Clay Co. 71 Id. 355.

The power to erect a court house is vested by statute in the county board, and must be exercised by it as a board or not at all. Birdsall v. Clark et al. 73 N. Y. 73; Thompson v. Schimerhorn, 2 Seld. 92; East St. Louis v. Wehrung, 50 Ill. 28; Dill. Mun. Corp. sec. 66.

The county and the other defendants could not have been jointly guilty of the act charged. The law gave the county alone the power to build the court house, and no one else could act with the county. Therefore the demurrer was properly sustained as to all the defendants.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action on the case, brought by Hannah Hollenbeck, administratrix of the estate of Almarin Hollenbeck, deceased, against the County of Winnebago, Duncan Ferguson, F. E. Latham, Anthony Haines, Hugh Mackey, Jo B. Merritt, John R. Herring and Jonathan H. Kirk, to recover for the death of Almarin Hollenbeck, who was killed by the falling of a portion of the court house while it was being erected, the deceased, at the time, being engaged as a workman on the building. The declaration contained five counts. The first count was as follows:

For that whereas the defendants, before and on the 11th day of May, A. D. 1877, were possessed and had the supervision and control of a certain building, situate on a certain piece or parcel of land in the county of Winnebago aforesaid, before that time dedicated to the use and purpose of a court house square or site, and which building was then and there being erected by and under the supervision and control of the defendants as and for a court house, for the county aforesaid, and in pursuance of a resolution of the Board of Supervisors of Winnebago county aforesaid, before that time duly passed therefor, and ought to have kept the same in good and safe condition while the same was being so erected as aforesaid; yet the defendants, not regarding their duty in that behalf while they were so possessed and had the supervision and control of the erection of the court house building aforesaid, to-wit: on the 11th day of May, A. D. 1877, there wrongfully and negligently suffered the same to be and remain in a bad and unsafe condition, and to be erected in a negligent and unsafe manner, and the main pavilion to said court house building to rest, on three sides thereof, upon iron girders without sufficient lateral stiffness, and the ends of said girders resting upon the front wall to said main pavilion without sufficient bearing upon said front wall; and certain iron pillars, supporting certain parts of said building, to stand upon certain brick piers insufficient in size and strength to support the weight placed upon said iron pillars, by means whereof a large portion of said building fell, and the plaintiff's intestate, who was then and there lawfully engaged, as a brick mason, in labor upon the main pavilion, and upper portion of said court house building, in the erection thereof, and while the said plaintiff's intestate, to-wit: Almarin Hollenbeck, with all due care and diligence, was so engaged in the performance of his said labor, on said building as aforesaid, was cast down with great force and violence, and buried in the ruins of such portion of said building as so fell, as aforesaid, and was thereby then and there killed. And the plaintiff avers that the said Almarin Hollenbeck left him surviving the plaintiff, his widow, and one Frank Hollenbeck, his minor son and next of kin, who are still living; and that by reason of the death of said Almarin Hollenbeck, as aforesaid, the said plaintiff has been and is deprived of her means of support; and the said Frank Hollenbeck has been and is deprived of his means of support and education.

The fifth count charges, the defendant county lawfully...